Latham v. Bolster ( 2019 )

UNITED STATES DISTRICT COURT FILED FOR THE EASTERN DISTRICT OF VIRGINIA — Norfolk Division DEC -2 2019 CHRISTOPHER AUSTIN LATHAM, #25674-171 CLERK, US DISTRICT COURT moe ORFOLK. VA Petitioner, v. ACTION NO. 2:19ev108 MARK BOLSTER, Acting Warden, FCI Petersburg-Low, Respondent. FINAL ORDER This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2241 submitted by pro se Petitioner Christopher Austin Latham (“Petitioner” or “Latham’’). Latham seeks to have his federal sentence vacated and he be resentenced “to that of a non-violent crime,” and to have the Bureau of Prisons reclassify him as a non-violent offender based on the Fourth Circuit’s opinion in United States v. McCollum, 885 F.3d 300 (4th Cir. 2018). The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Report of the Magistrate Judge was filed on November 1, 2019, recommending dismissal of Latham’s petition without prejudice for lack of jurisdiction. By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. The court has received no objections to the Magistrate Judge's Report and Recommendation and the time for filing objections has now expired. Accordingly, the court does hereby accept the findings and recommendations set forth in the report of the United States Magistrate Judge filed November 1, 2019, and itis, therefore ORDERED that Latham’s petition is DENIED and DISMISSED without prejudice. Finding that the basis for dismissal of Petitioner’s § 2241 petition is not debatable, and alternatively finding that Petitioner has not made a “substantial showing of the denial of a constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner intends to seek a certificate of appealability from the Fourth Circuit, he must do so within sixty (60) days from the date of this Order. Petitioner may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The Clerk shall mail a copy of this Final Order to Petitioner and provide an electronic copy of the Final Order to counsel of record for Respondent. KA? UNITED STATES DISTRICT JUDGE _ ike A, 2019