United States District Court, E.D. Texas, Beaumont Division
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND
Clark, Senior District Judge
Michael Puzey, an inmate confined at USP McCreary, proceeding
pro se and in forma pauperis, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
Court referred this matter to the Honorable Keith Giblin,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends the petition be
Court has received and considered the Report and
Recommendation of United States Magistrate Judge filed
pursuant to such order, along with the record, and pleadings.
Mr. Puzey filed objections to the Report and Recommendation
of United States Magistrate Judge. [Dkt. #17]. This requires
a de novo review of the objections in relation to
the pleadings and applicable law. See F ed. R. Civ.
Puzey has filed multiple challenges to his conviction and
subsequent incarceration based on his 2001 conviction in the
Northern District of West Virginia. Mr. Puzey's initial
appeal was denied by the Fourth Circuit in 2003 See
United States v. Puzey, 73 Fed. App'x 549 (4th Cir.
2003). The Supreme Court denied Puzey's petition for a
writ of certiorari in December of 2003. See Puzey v.
United States, 540 U.S. 1093 (2003).
thereafter, Mr. Puzey filed his first motion for relief under
§ 2255 in the Northern District of West Virginia. That
motion was denied and dismissed on the merits. Puzey v.
United States 2005 WL 8141669 (N.D.W.VA. Oct. 24, 2005).
Mr. Puzey appealed, and the Fourth Circuit denied a
certificate of appealability and dismissed the appeal.
See United States v. Puzey, 178 Fed.Appx. 304 (4th
Cir. 2006). The Supreme Court denied Mr. Puzey's petition
for writ of certiorari on the § 2255 claim. See
Puzey v. United States, 549 U.S. 1033 (2006).
2014, Mr. Puzey brought a second motion to vacate, set aside
or correct his sentence pursuant to § 2255. The district
court denied his petition. See Puzey v. United
States, 2014 WL 12516079 at *4 (N.D.W.VA June 16, 2014).
The district court also denied Mr. Puzey a certificate of
appealability, and his appeal was dismissed by the Fourth
Circuit. See United States v. Puzey 585 Fed.Appx.
203 (4th Cir. 2014). Mr. Puzey was transferred to FCC
Allenwood in White Deer, Pennsylvania and as a result, when
he filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241, the district court in Pennsylvania
transferred the petition back to the Northern District of
West Virginia for consideration under 28 U.S.C. § 2255.
See Puzey v. Allenwood, 2015 WL 7290007 at *1
(N.D.W. VA. Sept. 23, 2015). The district court in West
Virginia dismissed this action because it lacked jurisdiction
to consider yet another motion under § 2255 without an
order from the Fourth Circuit Court of Appeals. The Fourth
Circuit denied Mr. Puzey's request for rehearing. See
Puzey v. Allenwood 667 Fed.Appx. 56 (4th Cir. 2016). The
Supreme Court denied Mr. Puzey's petition for a writ of
certiorari. See Puzey v. Allenwood 137 S.Ct. 601
careful consideration of the objections, the court finds Mr
Puzey's objections lacking in merit. Petitioner begins
his Response with two objections that are unavailing. He
first describes his receipt of the Report and Recommendation,
asserting that “no postal mark was stamped on the mail
envelope.” He then argues, “that the court gains
an [sic] tactical advantage over petitioner by denying
petitioner his due relief stating that petitioner did not
respond in a timely fashion.” Alleging an imaginary
error is not a valid objection. Mr. Puzey correctly notes
that the Report and Recommendation is “addressed to a
(Mr. Pedro Pete Luebano).”[Dkt. #19 P2]. This is in
fact a typographical error in the Report and Recommendation,
but neither he nor this court were misled into believing that
the Report and Recommendation pertained to anybody other than
outlined by the Magistrate Judge, Mr. Puzey has not met his
burden in showing that § 2255 is inadequate to test the
legality of his detention. [Dkt. #17 P3]. Mr. Puzey raised
this exact issue in his third § 2255 motion to vacate,
set aside, or correct sentence in 2014. While Mr. Puzey
alleges that he “never filed his Watson claim
in a § 2255, but filed his initial Watson claim
in a § 2241." [Dkt. #8 P2]. Mr. Puzey is mistaken.
The district court in West Virginia considered and dismissed
his Watson claim in that matter. See Puzey v.
Warden FCC Allenwood, 2015 WL 7300549 at *4. The United
States Court of Appeals for the Fourth Circuit held,
“Puzey's reliance on Watson v. United
States is also misplaced because, even if the holding
applied to the facts of his case, Watson has not
been made retroactive to cases on collateral review by the
Supreme Court.” [Dkt. #7 Exhibit C]. As Mr. Puzey has
previously had an opportunity to challenge the legality of
his detention, filing a subsequent § 2255 motion
requires leave from the Fifth Circuit. That leave has not
been granted. A prior unsuccessful § 2255 motion, or the
inability to meet AEDPA's “second or
successive” requirement, does not make § 2255
inadequate or ineffective. Tolliver v. Dobre, 211
F.3d 876, 877 (5th Cir. 2000).
as argued by Respondent, even if Mr. Puzey could meet the
burden of the savings clause, Watson can be
distinguished. In Watson, the defendant was charged
with “use of a firearm, when he exchanged firearms for
drugs. The jury was instructed that mere possession could
constitute “use.” The Supreme Court determined
this was an improper instruction and reversed the conviction.
But, Mr. Puzey was not charged with “use of a
firearm” but rather, with “possession” of a
firearm in furtherance of a drug trafficking crime. The
Fourth Circuit Court of Appeals has addressed this
distinction in United States v. Robinson. 627 F.3d
941. Robinson was convicted under both prongs of 18 U.S.C.
§ 924(c), “use or carry” and the
“possession” prong. The Court held that even
though the trial instructions may have been incorrect post
Watson, Robinson was not prejudiced because he was
charged under the “possession” prong.
Robinson, 627 F.3d at 954.
Puzey does not contest that he possessed the firearms and
exchanged them for drugs, and the government did not charge
him with “use of a firearm.” Watson
simply does not apply to the facts of this case.
petitioner's objections are OVERRULED.
The findings of fact and conclusions of law of the Magistrate
Judge are correct, and the report of the Magistrate Judge is