United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James P. Mazzone [Doc. 11]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Mazzone for submission of a proposed report
and recommendation ("R&R"). Magistrate Judge
Mazzone filed his R&R on April 4, 2019, wherein he
recommends this Court deny and dismiss petitioner's
§ 2241 Petition [Doc. 1]; deny as moot petitioner's
Motion for Habeas Corpus Relief and for Interim Conditional
Release [Doc. 2] and Motion for Expedited Service [Doc. 3];
and deny petitioner's Motion Pursuant to Rule 15(d) [Doc.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a ate
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of cte novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Mazzone's R&R were due within fourteen (14) days of
service, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). Petitioner filed his Objections on May 3,
2019 [Doc. 16]. Accordingly, this Court will review the
portions of the R&R to which the petitioner objects under
a de novo standard of review. The remainder of the
R&R will be reviewed for clear error.
does not object to the R&R's recitation of the
factual background and procedural history. Thus, rather than
reiterating such in detail, this Court will only briefly
summarize that which is most relevant.
January 15, 2010, after more than two days on trial,
petitioner pled guilty to 23 counts of wire fraud and one
count of making a false statement. He was sentenced in the
District of Nevada to 121 months to be followed by a
five-year term of supervised release. Restitution in the
amount of $4, 288, 158.74 was also imposed.
filed a direct appeal claiming that his counsel was
ineffective, the district court erroneously applied a
two-level enhancement for use of "sophisticated
means," and that his gambling addiction was not taken
into consideration for sentencing. The Ninth Circuit affirmed
has also filed numerous post-conviction and habeas corpus
motions and opened new case numbers, alleging claims
including prosecutorial misconduct, ineffective assistance of
counsel, unconstitutional sentencing, his indictment was
tainted, improper seizure of his assets,
Bivens violations, that he is
actually innocent of one of the counts, he has not received
all his "good time" credits, and that because of
his age he should be granted early release. All of these
motions and claims were denied by different courts.
instant Petition for Habeas Corpus Pursuant to 28 U.S.C.
§ 2241, petitioner argues that (1) the First Step Act
mandates 54 days of good conduct time to be awarded, which
petitioner believes means he should have been released
earlier than the BOP release date; and (2) his supervised
release term must be reduced from five to three years because
no financial institution was affected, the maximum term of
supervised release for his wire fraud cannot be more than
three years, and his presentence investigation report
("PSR") was tampered with. On April 9, 2019,
petitioner was released from prison.
as here, a petitioner seeks to attack the imposition of his
sentence rather than its execution, he may only seek a writ
of habeas corpus pursuant to § 2241 by demonstrating
that § 2255 is "inadequate or ineffective to test
the legality of his detention." 28 U.S.C. § 2255(e)
(the "savings clause"); see also In re
Jones, 226 F.3d 328 (4th Cir. 2000). Relief under §
2255 is not inadequate or ineffective merely because relief
has become unavailable under § 2255 because of a
limitation bar, the prohibition against successive petitions,
or a procedural bar due to failure to raise the issue on
direct appeal. In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997).
United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018), the Fourth Circuit held that § 2255 is inadequate
or ineffective to test the legality of a sentence when all of
the following four conditions are met:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this ...