# Riley v. Gomez

> District Court, N.D. West Virginia · March 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10726242

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726242

## How later opinions describe it (automated extraction)

- finding that even though a party filed objections to the magistrate judge’s R&R, they were not specific enough to preserve the claim for review
- finding that without an objection, no explanation whatsoever is required of the district court when adopting an R&R

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

TERRANCE JEROME RILEY,

Petitioner,

v. CIVIL ACTION NO.: 3:19-CV-48
(GROH)

CHRISTOPHER GOMEZ, Warden,

Respondent.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

Currently before the Court is the Second Report and Recommendation (“R&R”) in
the above-styled action, entered by United States Magistrate Judge Robert W. Trumble
on November 2, 2021. ECF No. 40. Pursuant to Rule 2 of the Local Rules of Prisoner
Litigation Procedure, this action was referred to Magistrate Judge Trumble for submission
of an R&R. Therein, Magistrate Judge Trumble recommends that this Court dismiss the
Petitioner’s Petition without prejudice. The Petitioner timely filed his objections to the
R&R on November 22, 2021. ECF No. 43. Accordingly, this matter is now ripe for
adjudication.
I. BACKGROUND
On January 7, 2020, Terrance Jerome Riley (“Petitioner”) filed an amended petition
pro se pursuant to 28 U.S.C. § 2241. ECF No. 14. Therein, the Petitioner contests his
2010 conviction for violating 18 U.S.C. § 922(g)(1) and the subsequent sentence. The
Petitioner asserts two grounds for relief: (1) his conviction was based on an indictment
that failed to include the “knowledge of felon status” element, and now under Rehaif v.
United States, 139 S. Ct. 2191 (2021), his conviction is invalid and (2) his sentence was
erroneously enhanced by state convictions that do not qualify as “serious drug offenses”
under Armed Career Criminal Act, 18 U.S.C. 924(e). For relief, the Petitioner requests

that this Court vacate his unlawful conviction or resentence him without the erroneous
enhancement.
This Court referred review of the Petitioner’s § 2241 petition to Magistrate Judge
Trumble for submission of an R&R. On September 8, 2020, Magistrate Judge Trumble
filed an R&R, which recommended the amended petition be denied for lack of jurisdiction.
ECF No. 17. On March 30, 2021, this Court entered an Order declining to adopt the
Report and Recommendation and recommitting the petition to the Magistrate for further
proceedings. ECF No. 23. The Order further directed the Respondent to file a response
to the petition.
On July 29, 2021, the Respondent filed a Motion to Dismiss, or, in the Alternative,

Motion for Summary Judgment, along with a memorandum and exhibits in support
thereof. ECF No. 32. Therein, the Respondent presented two arguments to support his
request for dismissal: (1) the Petitioner cannot establish that the government’s failure to
include the “knowledge of status” element from his underlying indictment had a
substantial or injurious effect on his conviction and (2) the Petitioner is procedurally
defaulted from challenging his § 922(g) conviction under Rehaif because he did not object
to or challenge his felon status at his criminal trial, on direct appeal or in any of his three
§ 2255 motions to vacate.
On July 30, 2021, the Magistrate entered an Order and Roseboro Notice informing
the Petitioner of his right and obligation to file a response to the Respondent’s motion to
dismiss. ECF No. 37. The Petitioner accepted service of the Order and Roseboro notice
on August 2, 2021 [ECF No. 38], but the Petitioner has failed to file any response as of

the date of this Order.
The Magistrate submitted a Second Report and Recommendation [ECF No. 40]
on November 2, 2021. Therein, the Magistrate recommends that this Court deny the
Petitioner’s § 2241 petition and dismiss the same without prejudice. With respect to the
Petitioner’s challenge to his conviction, the Magistrate found that the Petitioner cannot
satisfy the savings clause of § 2255(e) because the substantive law governing the
Petitioner’s conduct has not changed to deem his conduct no longer criminal.
As to the Respondent’s argument that omitting the knowledge of status element
from his underlying indictment did not have a “substantial or injurious effect,” the
Magistrate found the Supreme Court’s decision in Greer v. United States, 141 S.Ct. 2090

(2021) (vacating and remanding United States v. Gary, 954 F.3d 194 (4th Cir. 2020))
instructive.1 In Greer, the Court held that the government’s failure to prove the element of
knowingly being a person in a prohibited class is not a structural error. The Supreme
Court explained that it “has repeatedly made clear [that] the ‘general rule’ is that ‘a
constitutional error does not automatically require reversal of a conviction,” and that
“[o]nly in a ‘very limited class of cases’ has the Court concluded that an error is structural,
and ‘thus subject to automatic reversal’ on appeal.” Id. at 2099 (internal citations omitted).

1 The Court notes that Greer was decided after this Court’s prior Order declining to adopt the R&R.
Additionally, the Magistrate noted that the Petitioner stipulated to his felon status
and to the consequence of his felon status that prohibits him from owning, possessing,
using or receiving firearms. Lastly, in addressing the Respondent’s argument that the
Petitioner is procedurally defaulted from challenging his § 922(g) conviction under Rehaif

because he did not object to or challenge his felon status previously, the Magistrate noted
that the trial, appeal, and motions to vacate predate the ruling in Rehaif.
In regards to the Petitioner’s request for resentencing, the Magistrate similarly
found the Petitioner cannot satisfy the savings clause of § 2255(e) because the
substantive law underlying the Petitioner’s conviction has not changed so that his conduct
is no longer criminal. The Petitioner was charged pursuant to 18 U.S.C. § 922(g) for
being a prohibited person in possession of a firearm, and being a prohibited person in
possession of a firearm remains a federal criminal offense under § 922(g). Further, Rehaif
has not been ruled to apply retroactively to cases on collateral review. Ultimately, the
Magistrate found that the Court is without jurisdiction to hear either ground of the

Petitioner’s § 2241 petition. Because the Court is without jurisdiction, the Magistrate
recommends that this Court dismiss the case.
The Petitioner timely filed his objections to the R&R on November 22, 2021. ECF
No. 43.2 The Respondent also filed a Response to the Petitioner’s objections. ECF No.
44. Accordingly, this matter is now ripe for adjudication.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.

2 The Court notes that the Petitioner filed a Motion for Extension of Time to File Objections [ECF No. 42],
but then proceeded to timely file objections nevertheless.
However, the Court is not required to 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. Thomas v. Arn, 474 U.S. 140,
150 (1985). Further, failure to file timely objections constitutes a waiver of de novo review

and the Petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Pursuant to this Court’s Local Rules, “written objections shall identify
each portion of the magistrate judge’s recommended disposition that is being challenged
and shall specify the basis for each objection.” LR PL P 12(b). The Local Rules also
prohibit objections that “exceed ten (10) typewritten pages or twenty (20) handwritten
pages, including exhibits, unless accompanied by a motion for leave to exceed the page
limitation.” LR PL P 12(d).
“When a party does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any specific error by the magistrate

judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730
(S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When
only a general objection is made to a portion of a magistrate judge’s report-
recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.” Williams v. New York State Div. of Parole, No. 9:10-CV-1533
(GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). “Similarly, when an
objection merely reiterates the same arguments made by the objecting party in its original
papers submitted to the magistrate judge, the Court subjects that portion of the report-
recommendation challenged by those arguments to only a clear error review.” Taylor v.
Astrue, 32 F. Supp. 3d 253, 260-61 (N.D.N.Y. 2012).
Courts have also held that when a party’s objection lacks adequate specificity, the
party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766

(2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge’s
R&R, they were not specific enough to preserve the claim for review). Bare statements
“devoid of any reference to specific findings or recommendations . . . and unsupported by
legal authority, [are] not sufficient.” Id. at 766. Pursuant to the Federal Rules of Civil
Procedure and this Court’s Local Rules, “referring the court to previously filed papers or
arguments does not constitute an adequate objection.” Id.; see also Fed. R. Civ. P. 72(b);
LR PL P 12. Finally, the Fourth Circuit has long held, “[a]bsent objection, we do not
believe that any explanation need be given for adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation
whatsoever is required of the district court when adopting an R&R).

III. DISCUSSION
Upon review of the filings in this matter, the Court finds that the Petitioner has made
two arguments in his objections: (1) his conviction is invalid under the holding in Rehaif
and (2) his prior Florida state convictions are not “serious drug offenses” under the Armed
Career Criminal Act. ECF No. 43. The Court will address each argument in turn.
A. Petitioner’s Objection to the R&R’s Finding that His Conviction is Valid

The Petitioner’s first objection asserts that his conviction is invalid under Rehaif
because the indictment failed to include the “knowledge of felon status” element. This is
the same argument that forms the basis of his petition. When an “objection merely
reiterates the same arguments made by the objecting party in its original papers
submitted to the magistrate judge, the Court subjects that portion of the report-
recommendation challenged by those arguments to only a clear error review.” Taylor, 32
F. Supp. 3d at 260-61. Therefore, the Court will review the R&R’s finding regarding the

validity of the Petitioner’s conviction to clear error review only.
In support of his objection, the Petitioner cites to Justice Sotomayor’s dissent in
Greer, which this Court does not find persuasive. Instead, this Court, like the R&R, finds
the majority opinion in Greer instructive. In Greer, the majority held that the government’s
failure to prove the element of knowingly being a person in a prohibited class is not a
structural error. The Court explained that it “has repeatedly made clear [that] the ‘general
rule’ is that ‘a constitutional error does not automatically require reversal of a conviction,”
and that “[o]nly in a ‘very limited class of cases’ has the Court concluded that an error is
structural, and ‘thus subject to automatic reversal’ on appeal.” Id. at 2099 (internal
citations omitted).

Additionally, upon a review of Eleventh Circuit precedent, the circuit in which the
Petitioner was convicted, the Court finds that the omission of the knowledge status does
not invalidate the Petitioner’s conviction. In United States v. McLellan, the Eleventh
Circuit held that “where the record clearly demonstrates that it would be implausible for
the defendant to not have been aware of his felony status, a Rehaif error does not affect
his substantial rights.” 958 F.3d 1110, 1118 (11th Cir. 2020). Similarly, in United States
v. Reed, the Eleventh Circuit found that an indictment without the knowledge of status
element at trial did not affect “[the defendant’s] substantial rights or the fairness, integrity,
or public reputation of his trial.” 941 F.3d 1018, 1022 (11th Cir. 2019).
The Petitioner indeed asserts that he would have argued he did not believe he was
a felon as a defense at trial, had the knowledge requirement been presented in the
indictment. However, as noted in the R&R, the Petitioner stipulated that he knew he was
a convicted felon who was prohibited from possessing firearms. ECF No. 103 at 221:12

– 222:8 in 8:09-CR-228-VMC. Further, according to the Petitioner’s Indictment, it appears
to the Court that the Petitioner was previously convicted of ten felonies. ECF No. 1-2 in
Case No. 8:09-CR-228-VMC. Returning to Greer with these facts, “demonstrating
prejudice under Rehaif ‘will be difficult for most convicted for one simple reason:
Convicted felons typically know they’re convicted felons.’” 141 S. Ct. at 2098. Even the
Petitioner’s counsel at trial twice acknowledged during opening statements that the
Petitioner was a felon. ECF No. 103 at 127:13-19 in Case No. 8:09-CR-228-VMC (“Mr.
Riley was a convicted felon . . . it is true. In fact, Mr. Riley is a convicted felon.”). The
record here demonstrates that the Petitioner’s purported defense that he did not know he
was a felon is implausible. Accordingly, the Petitioner’s first objection asserting that his

conviction is invalid under Rehaif because the indictment failed to include the “knowledge
of felon status” element is OVERRULED.
B. Petitioner’s Objection that the R&R Did Not Address His Argument
Regarding his Sentence
In his second objection, the Petitioner asserts that the Magistrate failed to resolve
the second ground of his amended petition, which claims that his prior state court
convictions do not qualify as “serious drug offenses” under Armed Career Criminal Act
and should not have been used to enhance his sentence. The Petitioner merely briefly
restates the argument from his petition as his objection, under the notion that it has not
been reviewed. Therefore, the Court will review the R&R’s finding regarding the validity
of the Petitioner’s conviction to clear error review only.
The Petitioner’s argument was addressed in the Magistrate’s first R&R on pages
eight and nine. ECF No. 17. The Magistrate found that “in his challenge to his sentence,

even if Petitioner meets the first prong of Wheeler, Petitioner cannot meet the second
prong, which requires a showing that subsequent to the prisoner’s direct appeal and first
§ 2255 motion, the aforementioned settled substantive law changed and was deemed to
apply retroactively on collateral review.” ECF No. 17 at 8-9. Specifically, the Magistrate
found that the Petitioner’s reliance “on Mathis or Descamps also lacks merit, as neither
case announced a new rule of Constitutional law that the Supreme Court has made
retroactive.” ECF No. 17 at 9.
The Petitioner did not object to the Magistrate’s finding regarding his sentence in
the first R&R. See ECF No. 20. In its prior Order, this Court found that the first R&R
properly addressed Wheeler and reached the correct conclusion regarding the

Petitioner’s sentence. ECF No. 23 at 3 n.1. While this Court declined to adopt the first
R&R’s recommendation to deny and dismiss the Petitioner’s § 2241 petition, it did so on
other grounds. Furthermore, the Magistrate briefly revisited the Petitioner’s sentencing
argument in its Second R&R as well. ECF No. 40 at 17-18. Accordingly, the Petitioner’s
objection asserting that his argument pertaining to the validity of his sentencing was not
addressed is OVERRULED.
IV. CONCLUSION
For the foregoing reasons, this Court finds that Magistrate Judge Trumble’s R&R
carefully considered the record and applied the appropriate legal analysis, and it is the
opinion of this Court that Magistrate Judge Trumble’s Second Report and
Recommendation [ECF No. 40] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated therein.
Accordingly, the Petitioner's Amended § 2241 Petition [ECF No. 14] is DENIED
and DISMISSED WITHOUT PREJUDICE and the Respondent’s Motion to Dismiss [ECF
No. 32] is GRANTED. The Petitioner’s Motion for Extension of Time [ECF No. 42] is
DENIED AS MOOT.
This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk of
Court is DIRECTED to mail a copy of this Order to the pro se Petitioner by certified mail,
return receipt requested, to his last known address as reflected on the docket sheet.

DATED: March 18, 2022
Loa ZARA
CHIEF UNITED STATES DISTRICT JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726242. Public record. Not legal advice.