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, Thuan Minh Pham, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 while incarcerated at USP Hazelton in Bruceton
Mills, West Virginia. ECF No. 1. In his petition, petitioner
challenges the validity of his sentence imposed by the United
States District Court for the Northern District of Texas. ECF
No. 1. Specifically, petitioner alleges that his three
convictions for aggravated robbery in the State of Texas
should not have been counted as separate offenses because
there was no intervening arrest and asserts that he is
entitled to be resentenced without the career offender
enhancement. ECF No. 1-1 at 7. Petitioner further alleges
that he currently has an United States Immigration and
Customs Enforcement (“ICE”) detainer and is under
the Public Safety Factor as a deportable alien. ECF No. 1-1
at 4. The petitioner states that he has been detained by the
United States Department of Homeland Security since December
15, 2016, based on probable cause that he is a removable
alien pursuant to a final order of removal against him and
requests that this court order the Department of Homeland
Security to remove the detainer and order the Federal Bureau
of Prisons (“BOP”) to remove it from his custody
classification. ECF No. 1-1 at 4.
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. 19) 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, petitioner's claim
appears to allege that his sentence was improperly enhanced
by the sentencing court, and does not relate to the execution
of his sentence or calculation of his sentence by the BOP.
ECF No. 19 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 8. The
magistrate judge determined that “[p]etitioner cannot
meet the second element of the test because he cites no case
in support of his allegation regarding his three underlying
convictions which has been deemed to apply retroactively to
cases on collateral review.” Id. Upon review,
the magistrate judge concluded that petitioner's claim
regarding his sentence may not be considered under §
2241 and that this Court is without jurisdiction to consider
that portion of the petition. Id. at 9. Further,
after review, the magistrate judge determined that the
petitioner's allegations regarding his Public Safety
Factor are now moot, because he was released from BOP custody
on October 30, 2018. Id. at 10. Furthermore, the
magistrate judge concluded that the issue of the ICE detainer
is likewise moot. Id. Accordingly, the magistrate
judge recommended that the petitioner's petition (ECF No.
1) be denied and dismissed without prejudice with respect to
the petitioner's claims regarding his sentence and be
denied and dismissed as moot with respect to his claims
regarding the ICE detainer and his Public Safety Factor.
Id. 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. 19) 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 with respect to the
petitioner's claims regarding his sentence and DENIED AND
DISMISSED AS MOOT with respect to his claims regarding the
United States Immigration and Customs Enforcement detainer
and his Public Safety Factor.
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