United States District Court, N.D. West Virginia, Elkins
CLINTON D. COX, Petitioner,
DAVID R. WILSON, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Doc. 14]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and a recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on September 18, 2017,
wherein he recommends this Court dismiss the petitioner's
§ 2241 petition without 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). In addition, failure to file timely
objections constitutes a waiver of de novo review
and the right to appeal this Court's Order. 28 U.S.C.
§ 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d
91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). Petitioner timely filed his Objections
[Doc. 16] on October 6, 2017. Accordingly, this Court will
review the portions of the R&R to which the petitioner
objects under a de novo standard of review. The
remainder of the R&R will be reviewed for clear error.
finds himself incarcerated at USP Hazelton after a jury found
him guilty of several drug trafficking and firearms charges.
This petitioner was not convicted nor sentenced in this
District, but rather in the District of Connecticut. His
direct appeal was denied by the Second Circuit Court of
Appeals. A plethora of collateral attacks followed. He has
now filed a § 2241 in this District seeking relief.
Although the petitioner's various methods of attack have
evolved over time, his failed arguments remain unchanged.
Petitioner essentially asserts a prior conviction upon which
an § 851 notice was based was not a valid predicate
offense. Rather, he argues that his Connecticut drug
conviction does not “categorically” qualify as a
felony offense. For the reasons that follow, this Court finds
that the petitioner is entitled to no relief.
is clearly developed that merely because relief has become
unavailable under § 2255 because of a limitation bar,
the prohibition against successive petitions, or a procedural
bar due to failure to raise the issue on direct appeal, does
not demonstrate that the § 2255 remedy is inadequate of
ineffective. In re Vial, 115 F.3d
1192, 1194 (4th Cir. 1997). Moreover, in
Jones, the Fourth Circuit held
§ 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of the
conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to
the prisoner's direct appeal and first § 2255
motion, the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be
criminal; and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
In re Jones, 226 F.3d 328, 333-334
(4th Cir. 2000).
the remedy provided under § 2255(e) opens only a narrow
door for a prisoner to challenge the validity of his
conviction or sentence under § 2241. Based on the
language in Jones, it is clear the
Fourth Circuit contemplated a situation in which a prisoner
is imprisoned for an offense which is no longer a crime.
§ 2241 petition is used to attack the manner in which a
sentence is executed. A § 2241 petition which challenges
a federal conviction and sentence is properly construed as a
§ 2255 petition. The only exception to this is where a
§ 2241 petition attacking a federal conviction and
sentence is entertained because the petitioner can satisfy
the requirements of the “savings clause” in
§ 2255. For instance, such relief is available where a
prisoner is imprisoned for an offense which is no longer a
R&R correctly notes that the petitioner fails to satisfy
the Jones test [Doc. 14 at 8]. The
petitioner's § 2241 petition alleges that based on
the quantity of drugs charged in the Indictment, he was
subject to a statutory minimum term of ten (10) years'
imprisonment. The Government, however, filed a § 851
notice seeking the enhanced mandatory twenty (20) year
sentence. Petitioner asserts this his prior conviction upon
which the § 851 notice was based was not a valid
predicate offense. Rather, he argues that his Connecticut
drug conviction does not “categorically” qualify
as a felony offense.
Objections, petitioner relies on Mathis v. United
States, 136 S.Ct. 2243, 2247-57 (2016), and
Persaud v. United States, 134 S.Ct.
1023 (2014), for relief. These cases are not persuasive. The
Fourth Circuit has held that the savings clause only
preserves claims in which the petitioner has alleged actual
innocence of a conviction. See Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Mathis, however, did not
decriminalize the conduct for which petitioner was convicted,
nor has petitioner alleged actual innocence.
addition, the Fourth Circuit has held that a petitioner
“could not proceed with his [challenge to his
sentencing enhancement] under § 2241.”
Rouse v. Wilson, 584 Fed.App'x.
76 (4th Cir. 2014). Further, the Court has held a challenge
to an ACCA sentence is not cognizable in ...