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Wardell v. Joyner

United States District Court, D. South Carolina, Rock Hill Division

November 8, 2018

WENDEL ROBERT WARDELL, JR., Petitioner,
v.
H. JOYNER, Warden, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Petitioner 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.

         The 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.

         Petitioner 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”), [1] on September 13, 2018. No. response has been filed.

         II. STANDARDS OF REVIEW

         A. Review of Magistrate's Order

         Magistrate 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).

         B. R&R

         This 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).

         C. Pro Se Plaintiff

         Petitioner 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).

         III. ...


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