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Midkiff v. Warden, FCI-Edgefield

United States District Court, D. South Carolina, Anderson/Greenwood Division

October 3, 2019

James Bernis Midkiff, Petitioner,
v.
Warden, FCI-Edgefield, Respondent.

          ORDER

          Timothy M. Cain United States District Judge.

         This matter is before the court on pro se Petitioner James Bernis Midkiff's (“Midkiff”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. The magistrate judge filed a Report and Recommendation (“Report”) recommending that Respondent's petition be dismissed without prejudice and without requiring Respondent to file an answer or return. (ECF No. 7 at 11). Midkiff subsequently filed objections to the Report. (ECF No. 10).

         The magistrate judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         Since Midkiff filed his petition pro se, this court is charged with construing the petition liberally in order to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal citations omitted); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, this does not mean that the court can ignore the failure to allege facts that set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         I. Background/Procedural History

         In her Report, the magistrate judge summarized the procedural history and background, and Midkiff did not object to that portion of the Report. (ECF No. 7 at 1-3). Briefly, on April 10, 2007, Midkiff was convicted by a jury in the United States District Court for the Western District of Louisiana on multiple charges, including conspiracy to distribute methamphetamine (Count 1); three counts of attempting to manufacture methamphetamine (Counts 2, 6 and 10); two counts of possessing of a firearm in furtherance of a drug trafficking crime, including the conspiracy alleged in Count 1, in violation of 18 U.S.C. § 924(c) (Counts 3 and 8); and two counts of possessing of a firearm by a convicted felon (Counts 4 and 9). Id. at 1; (ECF No. 1-1 at 2, 10-23).

         On October 4, 2007, Midkiff was sentenced to a term of imprisonment of 168 months as to Counts 1, 2, 6, 7, and 10 of the superseding indictment, to run concurrently with each other; a term of imprisonment of 60 months as to Count 3 of the superseding indictment alleging possession of a firearm in furtherance of a drug trafficking crime in violation of § 924(c), to run consecutively with the other counts; and a term of imprisonment of 300 months as to Count 8 of the superseding indictment-the second § 924(c) count-to run consecutively with the other counts. (ECF Nos. 1-1 at 2; 7 at 2). Accordingly, Midkiff received a sentence imposing a total term of imprisonment of 528 months. Id.

         On January 26, 2017, the sentencing court amended Midkiff's sentence under 18 U.S.C. § 3582, reducing the 168-month term of imprisonment as to Counts 1, 2, 6, 7, and 10 to 135 months, but leaving the 60-month term of imprisonment as to Count 3 and the 300-month term of imprisonment as to Count 8 unchanged. (ECF Nos. 1-1 at 2 n.1; 7 at 2). Therefore, Midkiff's total term of imprisonment was reduced to 495 months.

         On February 3, 2010, the United States Court of Appeals for the Fifth Circuit affirmed Midkiff's conviction and found no error in his sentence. See United States v. Jackson, 596 F.3d 236, 243-45 (5th Cir. 2010). The United States Supreme Court subsequently declined to issue a writ of certiorari. Midkiff v. United States, 559 U.S. 1082 (2010).

         Midkiff's § 2255 Motion

         On February 3, 2011, Midkiff filed a § 2255 motion, seeking relief based on multiple grounds: ineffective assistance of trial counsel, denial of due process, inappropriate sentencing, and ineffective assistance of appellate counsel. (ECF Nos. 1 at 4; 1-1 at 3; 7 at 3). Midkiff's § 2255 motion was denied on July 26, 2011. United States v. Midkiff, No. 1:05-cr-10022-01, 2011 WL 3328525 (W.D. La. June 15, 2011), Report and Recommendation adopted by 2011 WL 3328506 (W.D. La. July 26, 2011).

         Midkiff subsequently filed a motion with the Fifth Circuit Court of Appeals for permission to file a second or successive § 2255, arguing that his “consecutive sentences were improper because the § 924(c) convictions were erroneously linked to the same drug conspiracy offense rather than to separate drug trafficking offenses” as required by governing Fifth Circuit precedent. (ECF No. 1-1 at 24). On December 7, 2108, the Fifth Circuit denied Midkiff's request, concluding that the decisions he relied upon, including United States v. Riggins, 524 Fed. App'x 123, *7 (5th Cir. 2013), did not “announce[] a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review.” Id.

         Midkiff's Present Action

         Midkiff now seeks habeas relief from his second § 924(c) conviction on Count 8 of the superseding indictment and the resulting 300-month sentence pursuant to 28 U.S.C. § 2241. (ECF Nos. 1 at 1 and 9).[1] Midkiff contends that the law has changed since his sentencing in 2007 and now makes clear that his two § 924(c) charges were impermissibly linked to the same drug conspiracy offense. (ECF No. 1-1 at 4-5). As he did when he petitioned the Fifth Circuit- unsuccessfully-for permission to file a second or successive § 2255, Midkiff argues that Riggins announced a new rule of law that in order “‘to avoid violating double jeopardy principles each firearms offense must be sufficiently linked to a separate drug trafficking offense to prevent two convictions under § 924(c) on the same drug offense.'” Riggins, 524 Fed. App'x at *7 (quoting United States v. ...


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