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, Demond O'Neil Parker,
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 the validity
of his conviction from the Western District of
Virginia. ECF No. 1. Specifically, petitioner
alleges that his conviction under Count Sixteen stems from a
duplicitous indictment in violation of his rights under the
Fifth Amendment. ECF No. 1 at 5. For relief, the petitioner
requests this Court “vacate [his] conviction and
sentence on Count Sixteen, then dismiss the indictment with
prejudice.” Id. at 8. Petitioner also requests
his “conviction be vacated on Count One, and it be
remanded for a re-trail.” Id.
civil action was referred to United States Magistrate Judge
James P. Mazzone under Local Rule of Prisoner Litigation
Procedure 2. Magistrate Judge Mazzone issued a report and
recommendation (ECF No. 8) recommending that the
petitioner's petition (ECF No. 1) be denied and dismissed
without prejudice for lack of jurisdiction. ECF No. 8 at 7-8.
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, “[a]lthough Petitioner
has raised the savings clause, he is not entitled to its
application.” ECF No. 8 at 7. The magistrate judge
determined that the claims raised by the petitioner do not
remotely satisfy the savings clause and are clearly
allegations that could or should have been raised on appeal
or in his first § 2255 motion. Id. The
magistrate judge states that “[e]ven if Petitioner
satisfied the first and third elements of
Jones, the crimes for which he was convicted
remain criminal offenses, and therefore, he cannot satisfy
the second element of Jones.” Id.
Upon review, the magistrate judge concluded that
“because Petitioner attacks the validity of his
conviction and fails to establish that he meets the
Jones requirements, he is unable to satisfy the
§ 2255 savings clause to seek relief under §
2241.” Id. Thus, the magistrate judge
recommended that the petitioner's petition (ECF No. 1) be
denied and dismissed without prejudice because this Court
lacks jurisdiction to entertain the same. Id.
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. 8) 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