United States District Court, N.D. West Virginia
MELVIN D. SAMUELS, Petitioner,
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.
pro se 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.
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
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.
party has filed objections.
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alleges that his sentence as a career criminal is no longer
valid.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.
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.
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.
Court finds no error in the determinations of the magistrate
judge and ...