United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING
LETTER MOTION TO APPOINT COUNSEL
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Johnnie Edward Banks, Jr.
(“Banks”), filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
Petitioner was formerly incarcerated at FCI Gilmer in
Glenville, West Virginia, when he filed his petition
challenging the validity of his sentence from the United
States District Court for the Western District of Virginia.
ECF No. 10. In his petition, petitioner alleges that his
conviction for burglary no longer qualifies as a predicate
conviction for a career offender enhancement. ECF No. 1 at 5.
For relief, petitioner is requesting that this Court remove
his career offender enhancement and re-sentence him
accordingly. Id. at 8.
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. 11) recommending that the
petitioner’s petition (ECF No. 1) be denied and
dismissed without prejudice. ECF No. 11 at 8. 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, the petitioner does not
attack the execution of his sentence, but instead challengers
the validity of his sentence. ECF No. 11 at 5. The magistrate
judge determined that although petitioner does not raise the
savings clause, he is not entitled to its application. ECF
No. 11 at 6. 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 6. The
magistrate judge determined that in this case, even if
petitioner meets the first, second, and third prongs of
Wheeler, petitioner cannot meet the fourth prong,
which requires a showing that due to a retroactive change in
the law, petitioner’s sentence now presents an error
sufficiently grave to be deemed a fundamental defect.
Id. at 6-7. Upon review, the magistrate judge
concluded that the law in this Circuit makes clear that
petitioner cannot satisfy the fourth Wheeler prong,
and, therefore, fails to satisfy the § 2255(e) savings
clause. Id. at 8. Thus, because the magistrate judge
determined that the petitioner cannot satisfy the savings
clause of § 2255(e) under Wheeler, the
magistrate judge properly concluded that his claim may not be
considered under § 2241, and that this Court is without
jurisdiction to consider his petition. Accordingly, the
magistrate judge recommended that the petitioner’s
petition (ECF No. 1) be denied and dismissed without
prejudice. Id. at 8.
review, this Court finds no clear error in the determinations
of the magistrate judge and thus upholds his recommendation.
the petitioner’s motion to appoint counsel (ECF No. 12)
is denied. In contrast to a criminal proceeding in which the
Court has a duty to assign counsel to represent an indigent
defendant in accordance with his constitutional rights, the
Court in a civil case has the discretion to request an
attorney to represent a person unable to employ counsel.
See 28 U.S.C. § 1915(e)(1). It is well settled
that in a civil action, the Court should appoint counsel to
represent an indigent only after a showing of a particular
need or exceptional circumstances. Cook v. Bounds,
518 F.2d 779 (4th Cir. 1975). “The question of whether
such circumstances exist in any particular case hinges on
characteristics of the claim and the litigant.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.
1984). Upon review of the pending motion, the undersigned is
of the opinion that the petitioner has failed to show a
particular need or exceptional circumstances that would
require the assistance of a trained practitioner.
Accordingly, the motion is denied.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 11) 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. In addition, the
petitioner’s motion to appoint counsel (ECF No. 12) is
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