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Casas v. Saad

United States District Court, N.D. West Virginia, Elkins

November 26, 2018

JOSE CASAS, JR., Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON RAIKLEY UNITED STATES DISTRICT JUDGE.

         On this 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].

         Pursuant 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].[1] 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.

         BACKGROUND

         Petitioner 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.

         On May 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.

         On May 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 habeas petitions.

         On May 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.

         Petitioner's 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).

         APPLICABLE LAW

         Where, 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).

         In 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 ...

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