United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. Pursuant to this Court's Local Rules,
this action was referred to Magistrate Judge Trumble for
submission of a proposed R&R. Magistrate Judge Trumble
issued his R&R [ECF No. 13] on July 19, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner's
§ 2241 petition [ECF No. 1] be denied and dismissed
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's findings where
objection is made. However, the Court is not required to
review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge to which no
objection is made. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a
waiver of de novo review and of a petitioner's 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).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The R&R was mailed to the
Petitioner on July 19, 2019. ECF No. 13. The Petitioner
accepted service on July 24, 2019. ECF No. 14. Although the
Petitioner requested and was granted an extension to file
objections [see ECF Nos. 15, 16], the Petitioner
timely filed his objections on August 8, 2019. ECF No. 17.
Accordingly, this Court will review the portions of the
R&R to which the Petitioner objects de novo.
August 10, 2018, the Petitioner filed an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF
No. 1. Therein, the Petitioner challenges a sentence imposed
by the United States District Court for the District of New
Jersey. Specifically, the Petitioner asserts that he was
erroneously sentenced as a career offender. The Petitioner
argues that, following Mathis v. United States, his
offense of conviction, bank robbery, is no longer a crime of
violence. Therefore, the Petitioner argues that he should not
have been subjected to the career offender enhancement.
Accordingly, the Petitioner requests that this Court: (1)
vacate his sentence; and (2) re-sentence him without the
career offender enhancement.
a prisoner seeking to challenge the validity of his
conviction or sentence must proceed under 28 U.S.C. §
2255 in the district court of conviction. 28 U.S.C. §
2255; see United States v. Hayman, 342 U.S. 205,
216-17 (1952). Nevertheless, pursuant to the “savings
clause, ” a prisoner may challenge the validity of his
conviction or sentence under 28 U.S.C. § 2241 if it
appears that a § 2255 motion is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e).
Wheeler, a § 2255 motion is inadequate or
ineffective to test the legality of a sentence when 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
(3) the prisoner is unable to meet the gatekeeping provisions
of § 2255(h)(2) for second or successive motions; and
(4) due to this retroactive change, the sentence now presents
an error sufficiently grave to be deemed a ...