United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING
PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se 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.
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.
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).
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.
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
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.
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.
this Court agrees with the magistrate judge's conclusion
and adopts and affirms the report and recommendation in its
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 ...