United States District Court, N.D. West Virginia
JESSE T. GILMORE, Petitioner,
JENNIFER SAAD, Warden, 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, Jesse T. Gilmore, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. The petitioner was then incarcerated
at FCI Gilmer in Glenville, West Virginia. In his petition,
petitioner alleges that due to a “Subsequent,
Retroactive change in the Statutory interpretation by the
United States Supreme Court in Mathis v. United
States, 136 S.Ct. 2243 (2016)[, ]” his
Commonwealth of Virginia drug conviction fails to
categorically qualify as a “federally Controlled
Substance element that is included within the felony drug
offense definition Set forth in 21 U.S.C. § 802(44),
under the Statutory enhancement Provision of 21 U.S.C. §
851, § 841(b).” ECF No. 8-1 at 1-2 (internal
quotation marks omitted); ECF No. 1-1 at 1-2. Specifically,
the petitioner requests that “this Court Vacate his
Sentence and Order An immediate Release[.]” ECF No. 8-1
at 1; ECF No. 1-1 at 1.
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. 20) 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 the petitioner has not met the second prong under
the Wheeler test - that the “settled substantive
law [that established the legality of his sentence] changed
and was deemed to apply retroactively on collateral
review.” ECF No. 20 at 7. The magistrate judge cited
several cases within the United States Court of Appeals for
the Fourth Circuit and elsewhere that have held that
Mathis does not represent a substantive change in
the law. Id. at 7-8. Upon review, the magistrate
judge, concluded that this Court does not have jurisdiction
to consider the petition. Id. at 8-9. Thus, the
magistrate judge recommended that the petitioner's
petition (ECF No. 1) be denied and dismissed without
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. 20) 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