United States District Court, D. South Carolina, Rock Hill Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on Magistrate Judge Paige J.
Gossett's Order (“Order”) construing
petitioner Wendel Robert Wardell, Jr.'s
(“petitioner”) motion requesting reassignment as
a request to recuse and denying the motion, ECF No. 11, and
her Report and Recommendation (“R&R”) that
recommends this court deny petitioner's writ of habeas
corpus petition pursuant to 28 U.S.C. § 2241, ECF No.
13. For the reasons set forth below, the court affirms the
Order, adopts the R&R, and denies the petition.
was convicted by a jury of 18 different charges, including
conspiracy to defraud the United States, making false
statements in tax returns, and aiding and abetting the
preparation and presentation of false tax returns. ECF No.
1-1 at 2. At sentencing, the court found that petitioner was
responsible for an intended tax loss to the Internal Revenue
Service of $74, 916. Id. at 2. Petitioner explains
that this amount was calculated using, in part, two charges
of which the jury acquitted petitioner that were subsequently
dismissed by the sentencing court. Id. at 2-3.
Petitioner also states that the sentencing court considered
“uncharged conduct in arriving at [the Internal Revenue
Service's] intended tax loss.” Id. at 3.
Petitioner was sentenced to 96 months' imprisonment and
one year of supervised release. Id.
R&R recounts the procedural background of
petitioner's case. ECF No. 13 at 1-2. Petitioner's
only objection to this portion of the R&R is its
conclusion that petitioner attempted to file an unauthorized
second § 2255 motion. ECF No. 25 at 5. Petitioner claims
that he filed a Rule 60(b) motion, and that the district
court in that case improperly construed it as a second §
2255 motion. Id. at 5-6.
now seeks to have his sentence vacated pursuant to 28 U.S.C.
§ 2241. Petitioner filed his habeas petition on June 7,
2018. Then petitioner filed a motion for random re-assignment
of his case on July 30, 2018, and the magistrate judge
construed the motion as a request to recuse and denied it on
August 3, 2018. On the same day, the magistrate judge issued
her R&R recommending that petitioner's habeas
petition be dismissed. The court granted petitioner's
request for an extension of time to file objections to the
R&R on August 28, 2018. Petitioner filed his objections
as joint objections with another petitioner, Don Mitchell
Wilborn (“Wilborn”),  on September 13, 2018. No.
response has been filed.
STANDARDS OF REVIEW
Review of Magistrate's Order
judges have “the authority to hear and determine any
pretrial matter pending before the court” except for
dispositive motions. United States v. Benton, 523
F.3d 424, 430 (4th Cir. 2008). A party may object to a
magistrate judge's order on a nondispositive matter
within 14 days of service of the order. Fed. R. Civ. Pro.
72(a). The district court reviews such orders for clear
error. 28 U.S.C. § 636(b)(1)(A); Springs v. Ally
Fin. Inc., 657 Fed.Appx. 148, 152 (4th Cir. 2016).
court is charged with conducting a de novo review of
any portion of the magistrate judge's R&R to which
specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations
contained in that report. 28 U.S.C. § 636(b)(1). The
magistrate judge's recommendation does not carry
presumptive weight, and it is the responsibility of this
court to make a final determination. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). A party's
failure to object may be treated as agreement with the
conclusions of the magistrate judge. See Thomas v.
Arn, 474 U.S. 140, 150 (1985).
Pro Se Plaintiff
is proceeding pro se in this case. Federal district courts
are charged with liberally construing complaints filed by pro
se litigants to allow the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5,
9-10 (1980). Pro se complaints are therefore held to a less
stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean
that the court can ignore a clear failure in the pleading to
allege facts that set forth a cognizable claim. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91
(4th Cir. 1990).