United States District Court, N.D. West Virginia
DERRICK D. JONES, Petitioner,
JENNIFER SAAD, Warden, Respondent.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, a federal inmate housed at FCI
Gilmer, filed a petition for habeas corpus pursuant to 28
U.S.C. § 2241. ECF No. 1. First, the petitioner claims
ineffective assistance of counsel, a claim the petitioner
previously raised under 28 U.S.C. § 2255. ECF No. 1 at
4. Second, the petitioner claims he was improperly sentenced
under the Armed Career Criminal Act (“ACCA”)
because he argues that under Mathis v. United
States, 136 S.Ct. 2243 (2016), his previous offenses for
drug distribution under Georgia law are no longer a valid
predicate under the ACCA. ECF No. 1-1 at 12.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge then
entered a report and recommendation. ECF No. 10. In that
recommendation, the magistrate judge recommended that the
petition be denied and dismissed without prejudice. ECF No.
10 at 11. The magistrate judge found that the petition
relates to the validity of the petitioner's conviction
and sentence, and as such is improperly brought under §
2241. ECF No. 10 at 9. Further, the magistrate judge found
that the petitioner cannot demonstrate that § 2255 is
inadequate or ineffective because he cannot show any change
to the substantive law affecting his sentence that applies
retroactively. ECF No. 10 at 9-10. Thus, the magistrate judge
concluded that “the petitioner's claims may not be
considered under § 2241 . . . [and] this Court is
without jurisdiction to consider the [p]etition.” ECF
No. 10 at 11.
magistrate judge advised the parties that, pursuant to 28
U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations
within 14 days after being served a copy of the report and
recommendation. Neither party filed any objections to the
report and recommendation.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the petitioner did not file any objections to the
report and recommendation, the magistrate judge's
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Upon review, the magistrate judge noted that in order
to contest a sentence through § 2241 petition, a
petitioner must show that a motion under § 2255 would be
inadequate or ineffective. ECF No. 10 at 7-8 (citing
United States v. Wheeler, 886 F.3d 415, (4th Cir.
2018)). To meet the second prong of Wheeler, the
petitioner must show that a change in substantive law applied
retroactively to his sentence. The magistrate judge correctly
noted that two of the cases on which petitioner relies,
Mathis and Descamps v. United States, 133
S.Ct. 2276 (2013), do not meet this requirement because
neither are retroactive. ECF No. 10 at 10. Further, the
magistrate judge found that although the petitioner argues
that he is entitled to relief under Johnson v. United
States, 135 S.Ct. 2251 (2015), this claim is untimely
raised. ECF No. 10 at 10. Thus, the magistrate judge
correctly found that the petitioner's claims may not be
considered under a § 2241 petition. ECF No. 10 at 11.
this Court finds that the findings of the magistrate judge
are not clearly erroneous. Accordingly, the report and
recommendation is affirmed and adopted in its entirety.
the petitioner has not objected to the report and
recommendation of the magistrate judge, and because this
Court finds that the magistrate judge's recommendation is
not clearly erroneous, the report and recommendation of the
magistrate judge (ECF No. 10) is hereby AFFIRMED and ADOPTED
in its entirety. Accordingly, the petitioner's petition
for writ of habeas corpus under 28 U.S.C. § 2241 (ECF
No. 1) is DENIED.
further ORDERED that this case be DISMISSED WITHOUT PREJUDICE
and STRICKEN ...