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NWANZE v. HAHN

April 27, 2000

AUSTEN O. NWANZE, PETITIONER,
V.
JOHN HAHN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM ORDER

On January 16, 1998, Petitioner Austen Nwanze filed the instant petition for writ of habeas corpus. This matter was assigned to United States District Judge Sean J. McLaughlin and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

On March 21, 2000, Magistrate Judge Baxter issued a Report and Recommendation recommending that the petition be transferred to the United States District Court for the Eastern District of Virginia. Petitioner filed objections to the Magistrate Judge's Report and Recommendation. Respondent filed a response to Petitioner's objections.

AND NOW, this 27th day of April, 2000;

Following a de novo review of the record in this case,

IT IS HEREBY ORDERED that the Report and Recommendation by Magistrate Judge Baxter be adopted as the opinion of this Court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the instant petition for writ of habeas corpus be transferred to the United States District Court for the Eastern District of Virginia. A certificate of appealability should be denied.

II. REPORT

A. Relevant Factual and Procedural History

Respondent concedes that

a review of the facts of this case would indicate that Nwanze's conviction would, in all likelihood, be vacated under Bailey and existing Fourth Circuit authority. [Because Nwanze's conviction is a Fourth Circuit conviction, the validity of that conviction is governed by Fourth Circuit law.] See United States v. Hayden, 85 F.3d 153 (4th Cir. 1996) and United States v. Mitchell, 104 F.3d 649 (4th Cir. 1997). "Use" and "carry" within the statute prohibiting use or carrying a firearm during drug trafficking are distinct and ...

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