United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, Henry Wright, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
ECF No. 1.The petitioner is currently incarcerated at FCI
Beckley but was incarcerated at FCI Hazelton when he filed
this petition. In his petition, petitioner challenges the
decision of the United States Parole Commission (the
“Commission”)to depart 58 months above the
re-parole guideline range and alleges that the Commission
double counted conduct and considered acquitted conduct when
imposing an above guidelines sentence for his most recent
parole violation. For relief, the petitioner seeks a
correction and/or reduction in his sentence.
civil action was referred to United States Magistrate Judge
James E. Seibert under Local Rule of Prisoner Litigation
Procedure 2, and then reassigned to United States Magistrate
Judge James P. Mazzone. Following a preliminary review, which
determined that summary dismissal was not appropriate, the
respondent was ordered to show cause why the petition should
not be granted. ECF No. 4. The respondent filed a motion to
dismiss or, in the alternative, for summary judgment,
together with a supporting memorandum of law and exhibits.
ECF No. 10. A Roseboro notice was issued. ECF No.
11. The petitioner filed a response in opposition. ECF No.
13. Petitioner then filed an additional response. ECF No. 14.
Judge James P. Mazzone issued a report and recommendation
(ECF No. 21) recommending that the respondent's motion to
dismiss or, in the alternative, for summary judgment (ECF No.
10) be granted, that the petitioner's petition (ECF No.
1) be denied and dismissed with prejudice to the extent that
it challenges the decision of the Commission and be denied
and dismissed without prejudice to the extent that it seeks
relief under Rule 35(b) of the Criminal Rules of the District
of Columbia Superior Court. ECF No. 21 at 15. The petitioner
did not file objections to the report and recommendation. For
the following reasons, this Court affirms and adopts the
report and recommendation in its entirety.
to 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.
As to findings where no objections were made, such findings
and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A). 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).
report and recommendation, the magistrate judge correctly
noted that in the instant case, there is no dispute that the
Commission revoked the petitioner's parole after he was
released from incarceration following expiration of his
Maryland sentence. Nor is there a dispute that the Commission
chose to exceed the guideline range of 60-72 months to be
served based on his salient factor score of 1 and an offense
severity rating of five. The petitioner does not contest the
Commission's computation of either his Salient Factor
Score or offense severity. Instead, the petitioner's
claim is that the Commission engaged in double counting by
considering his violation behavior and his criminal history
to determine both his guideline range and justify its
decision to continue him to the expiration of his sentence, a
period of approximately 58 months above the top end of the
magistrate judge correctly noted, parole actions are subject
to review only to determine whether the Commission violated
the Constitution, its enabling statute, or parole
regulations. Garcia v. Neagle, 660 F.2d 983 (4th
Cir. 1981). After analysis, the magistrate judge properly
concluded that the decision to revoke the petitioner's
parole and continue him to the expiration of his sentence
does not constitute any such violation.
magistrate judge also properly concluded that, to the extent
the petition seeks other relief, this Court clearly does not
have jurisdiction over a motion to reduce a sentence pursuant
to Rule 35(b) of the Criminal Rules of the District of
Columbia Superior Court. Nor has the petitioner made any
allegation that would satisfy the four prong savings clause
established by the Fourth Circuit in United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018). Accordingly, as
the magistrate judge correctly noted, to the extent the
petition is seeking a reduction is his sentence pursuant to
Rule 35(b), the same should be dismissed for lack of
the magistrate judge concluded that the respondent's
motion to dismiss or, in the alternative, for summary
judgment (ECF No. 10) should be granted, that the
petitioner's petition (ECF No.1) should be denied and
dismissed with prejudice to the extent that it challenges the
decision of the Commission and should be denied and dismissed
without prejudice to the extent that it seeks relief under
Rule 35(b) of the Criminal Rules of the District of Columbia
Superior Court. ECF No. 21 at 15.
review, this Court finds no clear error in the determinations
of the magistrate judge ...