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Tazewell v. Entzel

United States District Court, N.D. West Virginia

March 15, 2019

TREMAINE TAZEWELL, Petitioner,
v.
FREDERICK ENTZEL, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION WITHOUT PREJUDICE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         The pro se[1] petitioner filed a petition for habeas corpus under 28 U.S.C. § 2241. ECF No. 1. In the petition, the petitioner contends that “he is in custody in violation of the Constitution or the laws of the United States because he does not have the necessary predicate convictions to qualify for an enhanced punishment.” Id. at 5. The petitioner relies on the following cases: Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016). The petitioner seeks a writ of habeas corpus stating that he is entitled to relief from his unconstitutional sentence. Id. at 8.

         United States Magistrate Judge James P. Mazzone entered a report and recommendation, in which he recommends that the § 2241 petition be denied and dismissed without prejudice. ECF No. 14 at 12.

         The petitioner filed objections. ECF No. 16. In his objections, the petitioner first argues that the magistrate judge erred by failing to apply the savings clause to the petitioner's sentence. Id. at 1. Specifically, the petitioner argues that the petitioner meets the fourth prong because “[p]etitioner's prior NY State conviction for attempted criminal possession in the [third] degree (used to impose a mandatory minimum sentence in this case) no longer ‘qualifies as a predicate offense' for enhanced punishment.” Id. at 2. Therefore, the petitioner argues that he has demonstrated that his current sentence is “sufficiently grave to be deemed a fundamental defect.” Id. (citing Wheeler, 886 F.3d at 430). Moreover, the petitioner asserts that Wheeler's second prong is met since Mathis v. United States, 136 S.Ct. 2243 (2016), is retroactive; therefore, he has demonstrated that he has relied on a “substantive change in decisional law that has been ‘made retroactive on collateral review.'” Id. (citing Wheeler, 886 F.3d at 429) (emphasis omitted).

         For the reasons set forth below, the report and recommendation of the magistrate judge (ECF No. 14) is affirmed and adopted, and the petitioner's objections (ECF No. 16) are overruled.

         II. 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 an objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which the petitioner objected. As to those findings to which objections were not filed, all findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). As the Supreme Court of the United States stated in United States v. United States Gypsum Co., “a finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 333 U.S. 364, 395 (1948). Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo.

         III. Discussion

         First, the magistrate judge correctly found that the petitioner is not entitled to the savings clause under 28 U.S.C. § 2255. Id. at 9. Because the petitioner is not challenging his conviction, the test in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), is inapplicable. Id. Rather, since the petitioner is challenging his sentence, the four part test in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), applies. Id.

         Second, the magistrate judge correctly concluded that because the petitioner cannot meet the second element of the Wheeler test, the petitioner's claims cannot be considered under § 2241, and the Court does not have jurisdiction to consider the petition. Id. at 11.

         Therefore, this Court agrees with the magistrate judge's conclusion and adopts and affirms the report and recommendation in its entirety.

         IV. Conclusion

         For the reasons discussed above, the report and recommendation of the magistrate judge (ECF No. 14) is AFFIRMED and ADOPTED and the petitioner's objections (ECF No. 16) are OVERRULED. It is further ORDERED that this civil action be ...


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