United States District Court, N.D. West Virginia
CHRISTOPHER A. FEKOS, Petitioner,
JOE COAKLEY, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT., 12]
AND DISMISSING WITHOUT PREJUDICE THE PETITION FOR A WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. §
2241 [DKT. NO. 1]
M. KEELEY UNITED STATES DISTRICT JUDGE.
11, 2007, in the Western District of Pennsylvania, the
pro se petitioner, Christopher A. Fekos
(“Fekos”), pleaded guilty to bank fraud, money
laundering, and mail fraud. The district court sentenced
Fekos to a total term of 200 months of incarceration.
Thereafter, Fekos pursued an unsuccessful direct appeal, an
unsuccessful motion to vacate under 28 U.S.C. § 2255,
and an unsuccessful “Motion to Reduce Sentence and for
De Novo Review of Newly Discovered
March 3, 2017, Fekos filed the pending petition for Habeas
Corpus pursuant to 28 U.S.C. § 2241
(“Petition”) (Dkt. No. 1). Among others, Fekos
claims that he received ineffective assistance of counsel and
that the sentencing court incorrectly calculated his total
offense level under the United States Sentencing Guidelines.
Id. at 5-7. He asks that the Court vacate his
sentence and “remand with specific instructions that
his new sentence not exceed 11 years.” Id. at
to 28 U.S.C. § 636 and LR PL P 2, the Court referred the
Petition to the Honorable Robert W. Trumble, United States
Magistrate Judge, for initial review. On April 24, 2018,
Magistrate Judge Trumble entered a Report and Recommendation
(“R&R”) recommending that the Court deny and
dismiss the Petition without prejudice (Dkt. No. 12). He
reasoned that Fekos cannot substitute § 2241 in place of
§ 2255 to attack his sentence, because he has not
identified a change in substantive law. Id. at 8-9.
On May 21, 2018, Fekos filed timely objections to the
R&R, reasserting that his sentencing court imposed an
erroneously harsh sentence due to a miscalculation (Dkt. No.
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection is timely made. 28 U.S.C. § 636(b)(1)(C). On
the other hand, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D.W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
de novo review of the R&R and the record, the
Court finds that Fekos's objections lack merit. Where a
petitioner seeks to attack the imposition of his sentence
rather than its execution, he may only seek a writ of habeas
corpus pursuant to § 2241 by demonstrating that §
2255 is “inadequate or ineffective to test the legality
of . . . detention.” 28 U.S.C. § 2255(e); see
also In re Jones, 226 F.3d 328, 332 (4th Cir. 2000).
United States v. Wheeler, the Fourth Circuit held
that § 2255 is inadequate or ineffective to test the
legality of a sentence when:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
886 F.3d 415, 429 (4th Cir. 2018) (citing In re
Jones, 226 F.3d at 333-34).
as the magistrate judge concluded, Wheeler precludes
any relief under § 2255's savings clause. Fekos has
not established that, subsequent to his first § 2255
motion, the “settled substantive law [that established
the legality of his sentence] changed and was deemed to apply
retroactively on collateral review, ” as required by
the second prong. Id. In fact, the only substantive
law that Fekos identifies in his lengthy objections to the
R&R was decided well before his § 2255 motion was
denied in 2014. See, e.g., Apprendi v. New
Jersey, 530 U.S. 466 (2000); Bailey v. United
States, 516 U.S. 137 (1995); United States v.
Olano, 507 U.S. 725 (1993).
because Fekos cannot satisfy the requirements of
Wheeler, the Court:
1) OVERRULES Fekos's objections (Dkt.
2) ADOPTS the R&R (Dkt. No. 12);
3) DENIES the Petition (Dkt. No. 1); and