United States District Court, D. South Carolina, Anderson/Greenwood Division
Timothy M. Cain United States District Judge.
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).
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).
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).
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,
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.
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
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
§ 2255 Motion
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).
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.”
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). 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. ...