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White v. Saad

United States District Court, N.D. West Virginia, Elkins

September 16, 2019

ISMALIUS J. WHITE, Petitioner,
v.
JENNIFER SAAD, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY UNIDED STATES DISTRICT JUDGE.

         The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 20]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on July 2, 2019, wherein he recommends the § 2241 petition be denied and dismissed without prejudice.

         I. BACKGROUND

         The petitioner is a federal inmate incarcerated at FCI Gilmer in the Northern District of West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on August 3, 2018, pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence. On March 2, 2009, petitioner was sentenced to 420 months imprisonment for violation of 21 U.S.C. § 846, conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base (crack).[1] According to the BOP website, petitioner is scheduled to be released on June 12, 2034.

         In his memorandum of law in support of his § 2241 petition, petitioner argues, first, that his sentence was improperly calculated with a gun enhancement, because petitioner was not charged with a crime relating to gun possession. [Doc. 1-1 at 5]. Second, petitioner argues his sentence was improperly enhanced because of a bogus Leadership Role. Id. Finally, petitioner contends that his sentence should be vacated because a conspiracy cannot exist with one person. Id.

         II. STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which 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 as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         In addition, failure to file timely objections constitutes a waiver of de novo review and the 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). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d1147, 1151 (4th Cir. 1971).

         Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. On July 18, 2019, the petitioner filed a motion for extension of time [Doc. 22]. This Court granted the motion and extended the deadline to file objections to September 5, 2019 [Doc. 23]. The petitioner timely filed his Objections to the Magistrate Judge's Report and Recommendation [Doc. 25] on September 3, 2019. Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         III. DISCUSSION

         Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal custody to test the legality of his detention. However, § 2255(e) contains a savings clause, which allows a district court to consider a habeas petition brought by a federal prisoner under § 2241 where § 2255 is "inadequate or ineffective to test the legality" of the detention. 28 U.S.C. § 2255; see also United States v. Poole, 531 F.3d 263, 270 (4th Cir. 2008). The fact that relief under § 2255 is procedurally barred does not render the remedy inadequate or ineffective to test the legality of a prisoner's detention. In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a § 2255 petition is only inadequate or ineffective to test the legality of detention when:

(1) [A]t the time of conviction, settled law in this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provision of § 2255 because the new rule is not one of constitutional law.

Poole, 531 F.3d at 269 (quoting In re Jones, 226 F.3d at 333-34).

         The Fourth Circuit recently found that the savings clause may apply to certain ...


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