United States District Court, N.D. West Virginia
JAYSON A. MITCHELL, Petitioner,
JOE COAKLEY, Respondent.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Jayson A. Mitchell, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. The petitioner is currently
incarcerated at USP Hazelton in Bruceton Mills, West
Virginia. In his petition, petitioner challenges the validity
of his sentence imposed in the United States District Court
for the Northern District of Ohio. ECF No. 1. Specifically,
petitioner alleges that his prior convictions cannot serve as
felony convictions for a crime of violence, and therefore,
his baseline offense under United States Sentencing Guideline
§ 2K2.1 was not properly calculated. ECF No. 1-1.
Petitioner alleges that his guideline calculation should have
been a 13, putting him in a sentencing range of 33 to 41
months. Id. at 6. Petitioner further argues that
even if one of his prior Ohio convictions constituted a crime
of violence, his sentencing range would be 63 to 78 months.
Id. For relief, petitioner requests that the court
“[c]orrect my sentence and sentence me in proper
guidelines.” ECF No. 1 at 8.
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 Mazzone issued a
report and recommendation (ECF No. 12) 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, “[a]lthough Petitioner
does not address the savings clause, he is not entitled to
its application.” ECF No. 12 at 7. The magistrate judge
properly determined that because petitioner is challenging
his sentence in a § 2241, he must meet all four prongs
of the Wheeler test for this Court to have
jurisdiction to hear his challenge on the merits.
Id. at 7-8. The magistrate judge determined that
“[i]n this case, even if Petitioner meets the first,
second, and third prongs of Wheeler, Petitioner
cannot meet the fourth prong, which requires a showing that
due to a retroactive change in the law, Petitioner's
sentence now presents an error sufficiently grave to be
deemed a fundamental defect.” Id. at 8. Upon
review, the magistrate judge concluded that “[b]ecause
Petitioner in this case was sentenced under the
post-Booker,  advisory Guidelines, regardless of whether
this was a misapplication of § 2K2.1 of the guidelines,
the law in this Circuit makes clear that he cannot satisfy
the fourth Wheeler prong, and, therefore, fails to
satisfy the § 2255(e) savings clause.”
Id. at 9. Thus, because the magistrate judge
determined that the petitioner cannot satisfy the savings
clause of § 2255(e) under Wheeler, the
magistrate judge properly concluded that his claim may not be
considered under § 2241, and that this Court is without
jurisdiction to consider his petition. Accordingly, the
magistrate judge recommended that the petitioner's
petition (ECF No. 1) be denied and dismissed without
prejudice. Id. at 9.
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. 12) 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