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, Tommy Haubrich, 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 Hazelton in Bruceton Mills, West
Virginia. In his petition, petitioner challenges his sentence
asserting that his sentence as a career criminal is no longer
valid. ECF No. 1. For relief, the petitioner requests this
Court vacate his sentence and/or conviction.
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. Magistrate Judge James P. Mazzone
issued a report and recommendation (ECF No. 7) recommending
that the petitioner's petition (ECF No. 1) be denied and
dismissed without prejudice. 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, although petitioner asserts
that he is entitled to relief under the savings clause, it is
clear that he is not entitled to its application. ECF No. 7
at 8. Here, the petitioner's claim attacks the validity
of his sentence, imposed by the Western District of Missouri,
asserting that under Mathis v. United States, 136
S.Ct. 2243 (2016), his Pennsylvania conviction for aggravated
assault does not categorically qualify as a crime of violence
and exceeds the scope of the generic definition of aggravated
assault. ECF No. 7 at 9. However, as the magistrate judge
correctly determined, to the extent that the petitioner
requests that the Court vacate his conviction, it is clear
that the crimes for which he was convicted remain criminal
offenses and, therefore, he cannot satisfy the second element
of the Jones test. ECF No. 7 at 8. Furthermore, with
respect to his sentence challenge, the magistrate judge
determined that even if the petitioner could satisfy the
first and third prongs of Wheeler, he has not
established that, after his first § 2255 motion, the
“settled substantive law [that established the legality
of his sentence] changed and was deemed to apply
retroactively on collateral review, ” as required by
the second prong. Id. at 7-8. Upon review, the
magistrate judge concluded that the petitioner's claim is
not properly considered under § 2241. ECF No. 7 at 10.
Thus, the magistrate judge recommended that the
petitioner's petition (ECF No. 1) be denied and dismissed
without prejudice. ECF No. 7 at 10.
review, this Court finds no clear error in the determinations
of the magistrate judge and thus upholds his recommendation.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 7) is AFFIRMED and ADOPTED in its
entirety. Accordingly, the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (ECF No. 1) is DENIED and
DISMISSED WITHOUT PREJUDICE.
Court finds that the petitioner was properly advised by the
magistrate judge that failure to timely object to the report
and recommendation in this action would result in a waiver of
appellate rights. Because the petitioner has failed to
object, he has waived his right to seek appellate review of
this matter. See Wright v. Collins, 766 F.2d 841,
844-45 (4th Cir. 1985).
ORDERED that this civil action be DISMISSED and STRICKEN from