United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING AMENDED  REPORT
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Amended Report and Recommendation of
United States Magistrate Judge Michael J. Aloi [Doc. 22].
Pursuant to this Court's Local Rules, this action was
referred to Magistrate Judge Aloi for submission of a
proposed report and a recommendation ("R&R").
Magistrate Judge Aloi filed his Amended R&R on September
19, 2017, wherein he recommends this Court grant the
respondent's Motion to Dismiss and deny and dismiss
without prejudice the § 2241 petition.
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, 47'4 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
Aloi'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). On motion of the petitioner, this Court
extended the deadline to October 26, 2017 [Doc. 25].
Objections were filed October 30, 2017 [Doc. 27]. This Court
will consider the same timely. Accordingly, this Court will
review the portions of the R&R to which objection was
made under a de novo standard of review. The
remainder will be reviewed for clear error.
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
§ 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 clearthe
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 crime.
savings clause of § 2255, however, is "confined to
instances of actual innocence of the underlying offense of
conviction, " not "innocence" of a sentencing
factor. Darden v. Stephens, 426 Fed.Appx. 173, 174
(4th Cir. 2011)(refusing to extend the savings clause to
reach the petitioner's claim that he was actually
innocent of being a career offender).
Objections simply rehash that which he previously argued in
his "Memorandum Brief in Support of Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 Savings
Clause Provision [and to] Stay All Proceedings." [Doc.
20]. Specifically, he alleges that in light of United
States v. Martin, 753 F.3d 485 (4th Cir. 2014), and
Descamps v. United States, 133 S.Ct. 2276 (2013), he
was improperly sentenced to mandatory life sentences under 18
U.S.C. § 3559(c), and that pursuant to Martin,
his prior conviction for breaking and entering is no longer a
serious violent felony for purposes of enhanced sentencing
under 18 U.S.C. § 3559(c).
petitioner's argument is misplaced for two reasons.
First, petitioner has not demonstrated that § 2255 is an
inadequate or ineffective remedy because he cannot show that
the conduct for which he was convicted has been deemed not
criminal, and he is procedurally barred from pursuing this
§ 2241 petition challenging his enhanced sentence. More
importantly, this Court lacks jurisdiction because the
petitioner is actually seeking § 2255 relief and has
been granted permission to and has filed a successive §
2255 petition in the sentencing court in the Western District
of North Carolina. See W.D. N.C. Case No. 3:08-cr-97. In
fact, on April 26, 2016, the petitioner filed an Application
for Leave to File Second or Successive Petition Pursuant to
28 U.S.C. § 2244 in the Fourth Circuit Court of Appeals,
which was granted by Order entered May 9, 2016. See In
re: Kelvin Gerard Moss, (4th Cir. 16-462). As noted
above, the petitioner filed his second § 2255 in the
sentencing court. Typically, such an action would be
transferred to the proper forum; however, as noted above,
this action is currently pending in the appropriate forum and
is awaiting disposition.
careful review of the above, it is the opinion of this Court
that the Amended Report and Recommendation [Doc.
22] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated in the
magistrate judge's report. The Respondent's Motion to