Drake v. Young, No. 5:2019cv00524 - Document 17 (S.D.W. Va. 2020)

Court Description: MEMORANDUM OPINION AND ORDER: overruling Mr. Drake's 16 objections, adopting the 9 Proposed Findings and Recommendations, dismissing the 1 Petition for Writ of Habeas Corpus, and dismissing this matter. Signed by Judge Frank W. Volk on 9/8/2020. (cc: counsel of record; any unrepresented party) (msa)

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Drake v. Young Doc. 17 Case 5:19-cv-00524 Document 17 Filed 09/08/20 Page 1 of 3 PageID #: 132 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY DEANTE DRAKE, Petitioner, v. CIVIL ACTION NO. 5:19-cv-00524 WARDEN D.L. YOUNG, Respondent. MEMORANDUM OPINION AND ORDER Pending is Deante Drake’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. 1] and additional documents in support of the Petition [Doc. 2] filed July 17, 2019. This action was previously referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”). Magistrate Judge Tinsley filed his PF&R on March 12, 2020 [Doc. 9]. In his PF&R, Magistrate Judge Tinsley recommended that the Court dismiss the Petition for a Writ of Habeas Corpus and the additional documents in support of the Petition, dismiss the civil action, and remove the matter from the Court’s docket [Id.]. The Court need not review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” (emphasis Dockets.Justia.com Case 5:19-cv-00524 Document 17 Filed 09/08/20 Page 2 of 3 PageID #: 133 added)). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal the Court’s order. See 28 U.S.C. § 636(b)(1); see also United States v. De LeonRamirez, 925 F.3d 177, 181 (4th Cir. 2019) (parties may not typically “appeal a magistrate judge’s findings that were not objected to below, as § 636(b) doesn’t require de novo review absent objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989). Further, the Court need not conduct de novo review when a party “makes 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). Mr. Drake timely filed his objections on July 8, 2020 [Doc. 16]. Mr. Drake objects to the PF&R’s recommendation that his § 2241 petition does not satisfy the criteria of the “savings clause” pursuant to our Court of Appeals’ decision in United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Specifically, Mr. Drake contends that United States v. Ferguson, 752 F.3d 613 (4th Cir. 2014), constitutes a retroactively applicable change in substantive law giving rise to a fundamental defect in his sentence [Doc. 16 at 6]. In Ferguson, our Court of Appeals interpreted Rule 32.1 of the Federal Rules of Criminal Procedure -- governing revocation of supervised release -- to require a district court to consider a defendant’s right to confrontation prior to admitting a laboratory report into evidence in the absence of a corroborating witness. 752 F.3d at 620 (citing United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012)). The pending petition does not challenge a sentence at revocation, but rather a sentence imposed following Mr. Drake’s plea of guilty. The Court did not admit a laboratory report into evidence in the absence of a corroborating witness as the district court did in Ferguson. Rather, Mr. Drake entered into a plea agreement in which he stipulated to the drug amount of “at least 50 grams but Case 5:19-cv-00524 Document 17 Filed 09/08/20 Page 3 of 3 PageID #: 134 less than 150 grams of cocaine base” [Doc. 1-9 at 3]. Ferguson bears no relation to Mr. Drake’s guilty plea, conviction, or sentence. Accordingly, Mr. Drake’s objections [Doc. 16] are OVERRULED. The Court ADOPTS the PF&R [Doc. 9], DISMISSES the Petition for Writ of Habeas Corpus [Doc. 1], and DISMISSES the matter. The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party. ENTERED: September 8, 2020

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