United States District Court, N.D. West Virginia, Elkins
ISMALIUS J. WHITE, Petitioner,
JENNIFER SAAD, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNIDED STATES DISTRICT JUDGE.
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.
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). According to the BOP website,
petitioner is scheduled to be released on June 12, 2034.
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.
STANDARD OF REVIEW
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).
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).
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
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
(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).
Fourth Circuit recently found that the savings clause may
apply to certain ...