United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se petitioner, Michael Clayton Earnest
(“Earnest”), filed a Petition for Habeas Corpus
Under 28 U.S.C. § 2241 (“§ 2241”). ECF
No. 1. The action was referred to United States Magistrate
Judge James P. Mazzone for initial review and report and
recommendation pursuant to Local Rule of Prisoner Litigation
magistrate judge filed a report and recommendation
recommending that the petitioner's petition (ECF No. 6)
be denied and dismissed without prejudice for lack of
jurisdiction. ECF No. 6 at 10. 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. Id.
pro se petitioner is currently incarcerated at FCI
Gilmer, where he is serving a sentence imposed by the United
States District Court for the Northern District of Alabama.
ECF No. 1 at 1-2. The petitioner filed a Petition for Habeas
Corpus Under 28 U.S.C. § 2241, in which he alleges that:
(1) his conviction of four counts of violation of 18 U.S.C.
§ 922(g) were premised on one episode of possession of
firearms and ammunition and that he was convicted and
sentenced separately for each weapon and ammunition based on
the same source of conduct, violating double jeopardy; (2)
ineffective assistance of counsel, because his lawyer failed
to challenge information provided by a confidential
informant; (3) his lawyer abandoned him, coerced him into
entering a guilty plea, and failed to advise him of his right
to appeal the results of the suppression hearing or to file
an appeal; and (4) the government violated its obligations
under the plea agreement by declining to apply a three-level
sentencing reduction under United States Sentencing Guideline
§ 3E1.1. Id. at 5-7. The petitioner requests
that the Court “vacate the convictions under 922(g). In
the alternative . . . that the Court hold an evidentiary
hearing so that petitioner may further prove his meritorious
grounds for relief, resolve any disputed facts, and expand an
incomplete record. ‘Remand for acceptance of
responsibility reduction.'.” Id. at 8.
petitioner also filed a motion for leave to proceed in forma
pauperis. ECF No. 2.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
its entirety, and the petitioner's motion for leave to
proceed in forma pauperis (ECF No. 2) be denied as moot.
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 first notes
that although the petitioner has not raised the savings
clause under 28 U.S.C. § 2255, the petitioner is not
entitled to its application since petitioner cannot meet the
second element under In re Jones, 226 F.3d 328 (4th
Cir. 2000). Id. at 9. Specifically, petitioner would
have had to show that “subsequent to the prisoner's
direct appeal and first § 2255 motion, the substantive
law changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal.” In re
Jones, 226 F.3d at 333-34. The magistrate judge also
addressed whether the petitioner's petition would meet
the four-part test established in United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018). Id. at
9-10. The magistrate judge found that “[p]etitioner
cannot meet the second element of the Wheeler test
because he cites no change to the settled law which
established the legality of his sentence, let alone a change
that has been deemed to apply retroactively to cases on
collateral review.” Id. at 10. Therefore, the
magistrate judge concluded that this Court lacks
jurisdiction. Id. The magistrate judge thus
recommends that the petitioner's petition (ECF No. 1) be
denied and dismissed without prejudice for lack of
jurisdiction. Id. at 11.
Court finds no error in the determinations of the magistrate
judge and thus upholds his recommendation. Moreover, because
the petitioner's petition (ECF No. 1) is dismissed
without prejudice, the petitioner's motion ...