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Samuels v. Kallis

United States District Court, N.D. West Virginia

January 14, 2019

MELVIN D. SAMUELS, Petitioner,
v.
S. KALLIS, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         The pro se[1] petitioner, Melvin D. Samuels, filed a petition for habeas corpus under 28 U.S.C. § 2241 (“§ 2241”). The action was referred to United States Magistrate Judge James E. Seibert for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2.

         The magistrate judge filed a report and recommendation recommending that this matter be denied and dismissed without prejudice. ECF No. 20 at 9. The magistrate judge informed the parties that if they objected to any portion of the report and recommendation, they were required to file written objections within 14 days after being served with copies of the report.

         The petitioner filed a motion for an extension of time to file objections to the magistrate judge's report and recommendation. ECF No. 23. This Court granted that motion and directed the petitioner to file objections to the magistrate judge's report and recommendation on or before September 28, 2018. ECF No. 24 at 1-2.

         Neither party has filed objections.

         II. Facts

         The pro se petitioner who was then incarcerated at FCI Hazelton (ECF No. 1 at 1), is serving a sentence imposed by the United States District Court for the Eastern District of Virginia. ECF No. 1 at 2. The petitioner filed a petition for habeas corpus under 28 U.S.C. § 2241, in which he alleges that his sentence as a career criminal is no longer valid. Id. at 5. The petitioner argues that “[a]t the time of sentencing the Court determined that Samuels was a career offender based upon four Virginia convictions.” Id. The petitioner states, “[r]ecently the Supreme Court clarified that a court must evaluate the predicate by looking only to the elements of the targeted crime. The sentencing [C]ourt did not do that therefore Samuels is innocent of the kind of offenses necessary for the career offender.” Id. In the attached memorandum of law in support of his petition, the petitioner asserts that: (1) the federal statute prohibiting possession of a saw-off shotgun does not meet the requirements of a crime of violence after Mathis v. United States, 136 S.Ct. 2243 (2016), (2) “Virginia's maiming statute does not meet the elements for a crime of violence, ” (3) “Virginia robbery is categorically not a crime of violence, ” and (4) his prior offense for use of a firearm during the commission of a felony does not meet the definition of a crime of violence. ECF No. 1-1 at 17-26. The petitioner requests that the Court vacate the career offender enhancement and sentence him again without that provision of the sentencing guidelines. Id. at 30.

         For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be adopted in its entirety.

         III. Applicable Law

         Under 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. § 636(b)(1)(A).

         IV. Discussion

         In his report and recommendation, the magistrate judge finds that the petitioner is not entitled to relief under the savings clause after applying the test set out in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Id. at 7. Specifically, the magistrate judge notes that the petitioner has not established that after his first § 2255 motion, settled substantive law that established the legality of his sentence changed and was deemed to apply retroactively on collateral review. Id. The magistrate judge also notes that “district courts in this Circuit and elsewhere have held that Mathis does not represent a substantive change in the law.” Id. at 7-8. Therefore, the magistrate judge concludes that it does not have jurisdiction to consider the petition. Id. at 8-9. The magistrate judge thus recommends that the petitioner's petition be denied and dismissed without prejudice. Id. at 9.

         This Court finds no error in the determinations of the magistrate judge and ...


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