United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON RAIKLEY 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 recommendation ("R&R"). Magistrate Judge
Seibert filed his R&R on July 2, 2018, wherein he
recommends this Court deny and dismiss without prejudice
petitioner's § 2241 Petition [Doc. 1].
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. Am, 140');">474 U.S. 140, 150 (19');">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.
19');">1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 19');">1984). Here, objections to Magistrate Judge
Seibert'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). Petitioner filed his Objections on
October 26, 2018 [Doc. 19');">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.
does not object to the R&R's recitation of the
factual background and procedural history. Thus, rather than
reiterating such in detail, this Court will only briefly
summarize that which is most relevant.
24, 2006, following a bench trial in the Southern District of
Texas, petitioner was found guilty of being a felon in
possession of a firearm, and he was found to be an Armed
Career Criminal. On August 28, 2006, the District Court
imposed a within-guideline range sentence of 262 months
imprisonment and 3 years of supervised release. In
determining the appropriate guideline range, petitioner's
offense level was increased based on a firearm enhancement
and for being "an armed career criminal [who] possessed
a firearm in connection with a Controlled Substance
offense." Petitioner's direct appeal was dismissed
by the Fifth Circuit for failure to pay the filing fee.
25, 2007, petitioner filed a pro se § 2255
petition asserting four grounds for relief, claiming Fourth
and Fifth Amendment violations and that he did not understand
the nature of his charges. The District Court ruled that
petitioner's claims were procedurally barred because they
were not raised on direct appeal. The District Court also
held that even if they were not barred, the claims were
without merit. A Certificate of Appealability was denied.
Petitioner later filed two more § 2255 petitions that
were both dismissed as unauthorized second or successive
25, 2016, petitioner was appointed counsel and the Court
later ordered the United States Probation Office to modify
the Presentence Investigative Report based on the Supreme
Court case, Johnson v. United States, 135 S.Ct. 2551
(2015). Counsel filed a motion for authorization to file a
successive § 2255 petition, relying on Mathis v.
United States, 136 S.Ct. 2243 (2016). The Fifth Circuit
denied the motion because there was no indication that the
new rule in Mathis would apply retroactively to
cases on collateral review. The § 2255 was dismissed for
lack of jurisdiction.
instant § 2241 petition attacks his sentence under the
savings clause of § 2255(e), relying on Mathis.
Petitioner contends that § 2255 is inadequate or
ineffective to test the legality of his detention. For
relief, petitioner requests this Court vacate his sentence
and resentence him without the Armed Career Criminal Act
("ACCA") enhancement. Magistrate Judge Seibert
recommends dismissing the petition because petitioner does
not seek any relief under permissible grounds for a §
2241 petition because his claims challenge the validity of
his sentence instead of relating to the execution of his
sentence or calculation of his sentence by the BOP. In his
objections to the R&R, petitioner argues that he should
be resentenced without the ACCA enhancement, relying on a
recent Supreme Court case, Sessions v. Dimaya, 138
S.Ct. 1204 (2018).
as here, 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 his detention." 28 U.S.C. § 2255(e)
(the "savings clause"); see also In re
Jones, 226 F.3d 328 (4th Cir. 2000). Relief under §
2255 is not inadequate or ineffective 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. In re Vial, 19');">192');">115 F.3d 119');">192, 119');">194 n.5
(4th Cir. 19');">1997).
United States v. Wheeler, 886 F.3d
415 (4th Cir. 2018), the Fourth Circuit held that § 2255
is inadequate or ineffective to test the legality of a
sentence when all of the following four conditions are met:
(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 ...