United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Charles Gripper, a federal inmate proceeding pro se,
filed this petition pursuant to 28 U.S.C. § 2241
challenging his "invalid mandatory sentence." (ECF
No. 3.) Respondent J. Ray Ormond moved to dismiss
Gripper's petition for lack of jurisdiction because
Gripper previously sought the same relief in the Middle
District of North Carolina and he may not seek to relitigate
the same issue here. (ECF No. 14.) Gripper opposed the motion
to dismiss, (ECF No. 15), and filed a Motion for Leave to
Supplement, (ECF No. 16).
December 17, 2019, the Magistrate Judge issued a Report and
Recommendation wherein he recommended granting the Motion for
Leave to Supplement, granting the Motion to Dismiss, and
dismissing the § 2241 Petition without prejudice because
the Court lacks jurisdiction. The Magistrate Judge advised
Gripper that he could file objections within fourteen (14)
days after the entry of the Report and Recommendation.
Gripper did not file objections to the Report and
Recommendation. Instead, on December 22, 2019, Gripper filed
an "Informal Opening Brief addressed to the United
States Court of Appeals for the Fourth Circuit, asking the
Fourth Circuit to "remand this case with instructions
for the District Court to grant the § 2241 relief
requested and order a new sentencing without the now-invalid
mandatory Pre-Booker career offender sentence increase."
(ECF No. 18.) The Court liberally construes this submission
as Gripper's Objections to the Report and Recommendation.
magistrate [judge] makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with
this court." Estrada v. Withowski, 816 F.Supp.
408, 410 (D.S.C. 1993) (citing Mathews v. Weber, 423
U.S. 261, 270-71 (1976)). This Court "shall make a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." 28 U.S.C. § 636(b)(1).
"The filing of objections to a magistrate [judge's]
report enables the district judge to focus attention on those
issues-factual and legal- that are at the heart of the
parties' dispute." Thomas v. Am, 474 U.S.
140, 147 (1985) (footnote omitted). In the absence of a
specific written objection, this Court may adopt a magistrate
judge's recommendation without conducting a de
novo review. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
Informal Opening Brief does not mention the Report and
Recommendation, raise objections to its reasoning, or
otherwise explain how the magistrate judge erred. For an
objection to trigger de novo review, it must be made
with "sufficient specificity so as reasonably to alert
the district court of the true ground for the
objection." United States v. Midgette, 478 F.3d
616, 622 (4th Cir. 2007); see Page v. Lee, 337 F.3d
411, 416 n.3 (4th Cir. 2003) ("[Petitioner's failure
to object to the magistrate judge's recommendation with
the specificity required by the Rule is, standing alone, a
sufficient basis upon which to affirm the judgment of the
district court as to this claim."). Further, the
objection must respond to a specific error in the Report and
Recommendation. See Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982). "General objections to a magistrate
judge's report and recommendation, reiterating arguments
already presented, lack the specificity required by Rule 72
and have the same effect as a failure to object."
United States v. Wearing, No. 3:04-cr-00092, 2011 WL
918343, at *2 (W.D. Va. Mar. 15, 2011) (citing
Orpiano, 687 F.2d at 47; Veney v. Astrue,
539 F.Supp.2d 841, 845-46 (W.D. Va. 2008)), aff'd
446 F. App'x 641 (4th Cir. 2011).
Informal Opening Brief is practically tantamount to failing
to object. Gripper does not mention the Report and
Recommendation or assert that the magistrate judge erred.
Rather, he raises the same arguments that he raised before.
The Court finds that because Gripper has failed to object to
any specific conclusion made by the magistrate judge in the
Report and Recommendation, his Informal Opening Brief lacks
the specificity required to trigger de novo review.
event, the Court, after reviewing the Report and
Recommendation and the record before it, concludes that the
Report and Recommendation is correct on the merits. Gripper
sought the same relief in the Middle District of North
Carolina, which that court denied, and the Fourth Circuit
affirmed. See United States v. Gripper, 719
Fed.Appx. 278 (4th Cir. 2018). And though Gripper references
the Supreme Court of the United States' decision to grant
the petition for writ of certiorari in Shular v. United
States, 139 S.Ct. 2773 (2019) (granting writ to decide
whether the determination of a "serious drug
offense" under the Armed Career Criminal Act requires
the same categorical approach used in the determination of a
"violent felony" under the act), that case remains
pending and provides Gripper no relief at this juncture.
Accordingly, the Court will overrule Gripper's Informal
Opening Brief, which it construes as an objection.
Court having determined that the Report and Recommendation is
correct on its merits, the Report and Recommendation (ECF No.
17) will be ACCEPTED and ADOPTED. Gripper's Motion for
Leave to Supplement will be GRANTED. (ECF No. 16.)
Respondent's Motion to Dismiss will be GRANTED. (ECF No.
14.) The Court will dismiss without prejudice ...