United States District Court, N.D. West Virginia Elkins
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 Michael J. Aloi [Doc. 17]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of a proposed report and
recommendation ("R&R"). Magistrate Judge Aloi
entered his R&R on December 5, 2017, wherein he
recommends this Court grant Respondent's Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment
[Doc. 12], and deny the petitioner's § 2241 petition
and dismiss the petition without prejudice.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a cfe 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 cfe
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 cfe 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
service, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The docket reflects that service was
accepted on December 7, 2017 [Doc. 18]. The petitioner timely
filed his Objections on December 15, 2017 [Doc. 19].
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.
Fourth Circuit precedent, a criminal defendant cannot use the
savings clause to fundamentally challenge his sentence under
the pretext of a habeas petition. Instead, in the Fourth
Circuit, the savings clause is properly employed to argue
that a defendant is actually innocent of the underlying
offense of conviction. See Rice v. Rivera, 617 F.3d
802, 807 (4th Cir. 2010); United States v. Poole,
531 F.3d 263, 267 n.7 (4th Cir. 2008).
the petitioner relies on Mathis v. United States,
136 S.Ct. 2243 (2016), for relief. Magistrate Judge Aloi
found, however, "that decision did not decriminalize the
conduct for which Petitioner was convicted" [Doc. 17 at
9]. Therefore, as petitioner's claim is not one of actual
innocence, but rather only a challenge to his sentence,
"under Fourth Circuit precedent, he is unable to satisfy
§ 2255's savings clause to seek relief under §
2241" [Id. at 9-10]. Accordingly, Magistrate
Judge Aloi held that "[w]here, as here, a federal
prisoner brings a § 2241 petition that does not fall
within the scope of the savings clause, the district court
must dismiss the unauthorized habeas motion for lack of
jurisdiction" [Id. at 10] (citing
Rice, 617 F.3d at 807).
petitioner's Objections to the Magistrate's Report
and Recommendation [Doc. 19], the petitioner does not argue
that Magistrate Judge Aloi's finding that the § 2241
petition does not fall within the scope of the savings clause
was wrong. Instead, petitioner states there is a case
currently pending before the Fourth Circuit,
United States v. Wheeler, No.
16-6073, "that will directly affect this case"
[Id. at 1]. Thus, petitioner requests this Court not
adopt the R&R at this time and instead "hold its
decision in abeyance until the Fourth Circuit issues the
opinion in Wheeler" [Id. at 2].
Court declines to stay this case pending the Fourth
Circuit's opinion in Wheeler. It is not certain
that any opinion in Wheeler would affect
petitioner's claim here, as this Court will not speculate
on how far the Fourth Circuit will go in changing its current
precedent-if at all. However, it is possible a favorable
decision in Wheeler could allow petitioner to assert
the type of claim he brings here. If that is the case,
petitioner is free to bring his petition again at that time
(as this petition will be dismissed without prejudice), and
this Court will then review the petition on its
merits. Until then, however, this Court must
follow current Fourth Circuit precedent, and therefore must
dismiss petitioner's petition for want of jurisdiction.
upon careful review of the above, it is the opinion of this
Court that the Report and Recommendation [Doc. 17] should be,
and is, hereby ORDERED ADOPTED for the reasons more fully
stated in the magistrate judge's report. Accordingly,
this Court ORDERS that the respondent's Motion to
Dismiss, or in the Alternative for Summary Judgment [Doc.
12], is hereby GRANTED and the petitioner's Petition for
Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] is
hereby DENIED and DISMISSED WITHOUT PREJUDICE. This Court
further ORDERS that this matter be STRICKEN from the active
docket of this Court and DIRECTS the Clerk to enter judgment
in favor of the respondent.
Clerk is directed to transmit copies of this Order to any
counsel of record herein and to mail a copy to the pro
 This Court notes that petitioner has a
§ 2255 petition pending in the United States District
Court for the District of Maryland [Crim. Action No.
8:12-cr-199, Docs. 59-60], which makes the same argument
petitioner presents here and which is ...