United States District Court, N.D. West Virginia
ORDER ADOPTING IN PART REPORT AND
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of a Report and
Recommendation (“R&R”) issued by United
States Magistrate Judge James E. Seibert. Pursuant to Rule 2
of the Local Rules of Prisoner Litigation Procedure, this
action was referred to Magistrate Judge Seibert for
submission of an R&R. On July 25, 2016, Magistrate Judge
Seibert issued his R&R [ECF No. 8], which recommends that
this Court grant the Petitioner's motion to amend his
petition [ECF No. 7], deny the petition [ECF No. 1] and
dismiss it with prejudice.
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.
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).
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)(C);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984).
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, objections to Magistrate
Judge Seibert's R&R were due within fourteen days
after being served with a copy of the R&R. The Petitioner
was served with the R&R on July 29, 2016. ECF No. 9. To
date, no objections have been filed in this matter.
Accordingly, the Court reviews the R&R for clear error.
September 8, 2015, the Petitioner filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No.
1. As an initial matter, the Petitioner avers that his claims
are properly filed in a petition pursuant to 28 U.S.C. §
2241, rather than a petition pursuant to 28 U.S.C. §
2255, because the relief afforded by ' 2255 is inadequate
or ineffective. See Id. at 9. The Petitioner raises
three grounds for relief in his petition: he received one
extra criminal history point in regard to two misdemeanor DUI
convictions; he had his sentence enhanced for obstruction of
justice and he was denied a reduction for acceptance of
the Petitioner argues that the probation office incorrectly
determined the number of points he should have received with
regard to two misdemeanor DUI convictions. He received two
criminal history points, but he claims only one was proper.
Second, the Petitioner avers that the sentencing court's
enhancement for obstruction of justice was not warranted.
Specifically, the Petitioner submits that he admitted to his
probation officer that he used an illegal substance, but when
he was questioned by the court about this incident he
received "no support or guidance from his attorney while
suffering extreme mental depression and drug
addiction.” Id. at 6. Third, the Petitioner
asserts that the sentencing court erred by declining to give
him a reduction for acceptance of responsibility. As relief,
the Petitioner requests that the Court Avacate, set aside
and/or modify his improper sentence.” ECF No. 1-1 at
review, the Court agrees with Magistrate Judge Seibert's
finding that the instant petition was improperly filed
pursuant to ' 2241. A petition is properly filed pursuant
to ' 2241 when it “attacks . . . the execution of a
sentence.” Fontanez v. O'Brien, 807 F.3d
84, 87 (4th Cir. 2015) (collecting cases); see also In re
Vial, 115 F.3d 1192, 1994 n.5 (4th Cir. 1997).
Alternatively, a petition is properly filed pursuant to '
2255 when it attacks the legality of a conviction or
sentence. United States v. Hadden, 475 F.3d 652, 660
(4th Cir. 2007); Charles v. Chandler, 180 F.3d 753,
755-56 (6th Cir. 1999) (per curiam) (collecting cases). In
limited circumstances, a federal prisoner may bring his
claims pursuant to ' 2241 if he demonstrates that relief
provided under ' 2255 is inadequate or ineffective.
See 28 U.S.C. § 2255; In re Jones, 226
F.3d 328, 333 (4th Cir. 2000). Here, the Petitioner attacks
the legality of his conviction and sentence and has failed to
meet the savings clause requirements as announced in
Jones. See Jones, 226 F.3d at 333-34.
the Court finds that Magistrate Judge Seibert's Report
and Recommendation [ECF No. 8] should be, and is, hereby
ADOPTED IN PART. The Court ORDERS that the Petitioner's
28 U.S.C. § 2241 petition [ECF No. 1] is DENIED and
DISMISSED with PREJUDICE. The Court further ORDERS that the
Petitioner's Motion to Amend [ECF No. 7] is DENIED as
MOOT. The Court ORDERS this case STRICKEN from its active
Clerk is DIRECTED to enter a separate judgment order in favor
of the Respondent.
the instant petition seeks relief pursuant to § 2241,
the Court has found that it attacks the legality of the
Petitioner's conviction and sentence but fails to meet
the savings clause requirements. Therefore, as a final
matter, upon an independent review of the record, this Court
hereby DENIES Petitioner a Certificate of Appealability,
finding that he has failed to make “a substantial
showing of the denial of a constitutional right." 28
Clerk is DIRECTED to transmit copies of this Order to all
counsel of record and to mail a copy to the pro se
Petitioner by certified mail, return receipt requested.
 Magistrate Judge Seibert's R&R
is adopted in part only insofar as this Court declines to
grant the Petitioner's motion to amend. All other
findings and ...