United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Frederick P. Stamp, Jr. United States District Judge.
pro se petitioner, Ramon Reyes
(“Reyes”), filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
Petitioner is a federal inmate incarcerated at FCI Hazelton
in Bruceton Mills, West Virginia. Petitioner's petition
challenges the validity of his sentence from the United
States District Court for the Eastern District of
Pennsylvania. ECF No. 1. In his petition, petitioner alleges
that his sentence is based on an erroneous career offender
enhancement and is defective under United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018). For relief,
petitioner is requesting that this Court vacate his sentence
as a career offender and impose the correct sentence.
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. 8) recommending that the
petitioner's petition (ECF No. 1) be denied and dismissed
without prejudice. ECF No. 8 at 6. The petitioner did not
file objections to the report and recommendation. Rather, the
petitioner filed a motion to supplement his petition (ECF No.
10) and a motion for leave to file excess pages (ECF No. 11).
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 challenges
the validity of his sentence. ECF No. 8 at 3. The magistrate
judge determined that although petitioner alleges that he
satisfies the savings clause, he is mistaken. Id. at
5. 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, a review of Reyes' criminal docket
sheet establishes that his § 2255 motion is still
pending. Therefore, petitioner clearly cannot meet the second
prong of the savings clause established in Wheeler.
Moreover, even if Reyes met the first, second, and third
prongs of Wheeler, the magistrate judge concluded
that petitioner cannot meet the fourth prong, which requires
a showing that due to a retroactive change in the law, his
sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
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 6. 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.
this Court has reviewed the petitioner's motion to
supplement his petition (ECF No. 10) and motion for leave to
file excess pages (ECF No. 11). To the extent petitioner
seeks to “supplement” his petition by asking this
Court to consider additional authority in support of his
petition, the motions are denied as untimely. However, even
if this Court were to permit to the petitioner to file his
untimely supplement to the petition, this Court finds that
the authority cited by the petitioner, Rehaif v. United
States, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019), and
United States v. Havis, 927 F.3d 382 (6th Cir.),
reconsideration denied, 929 F.3d 317 (6th Cir. 2019), does
not impact this Court's decision.
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. 8) 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 supplement (ECF No. 10) and motion
to file excess pages (ECF No. 11) are DENIED as untimely.
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 ...