United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING
PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Henry Wayne Collier, a federal
inmate designated to FCI Gilmer in Glenville, West Virginia,
filed a petition for habeas corpus under 28 U.S.C. §
2241. ECF No. 1. In the petition, the petitioner states that
“per Dimaya and Johnson,  the residual clause of
career offender is constitutionally vague.” ECF No. 1
at 5; ECF No. 1-1 at 2. The petitioner next asserts that
“the career offender's definition of a crime of
violence does not apply to [his] bank robbery offense.”
ECF No. 1 at 5. Specifically, the petitioner asserts that
“federal bank robbery criminalizes conduct that does
not require an intentional threat of physical force.
Therefore, federal bank robbery fails to qualify as a crime
of violence under Garcia,  and as such the petitioner's priors
do not qualify as crime of violence [ ] under the career
offender guideline.” ECF No. 1-1 at 3. Moreover, the
petitioner states that “[u]tilizing the reasoning in
Dimaya & Johnson, in all of the petitioner's prior
bank robberies, there were not weapons utilized . . . only
notes. No. one was harmed, physically or otherwise. No. one
was restrained/tied up or gagged. Simply a note presented,
and money given . . . then the petitioner quickly exited the
bank.” Id. at 6. For relief, the petitioner
requests that this Court “vacate the illegal career
offender sentence and re-sentence without the career offender
designation.” ECF No. 1 at 8.
States Magistrate Judge James P. Mazzone entered a report and
recommendation (ECF No. 14) and the petitioner timely filed
timely filed objections (ECF No. 16). In his objections, the
petitioner states that “because the petitioner's
brief passes the first three prongs of Wheeler,
this is the most glaring example that sec. 2255 is inadequate
and ineffective to provide relief.” Id. at 2.
The petitioner asserts that “the magistrate judge
relies on, what amounts to a technicality to recommend denial
of the petitioner in his quest for relief.”
Id. The petitioner then alleges a violation of due
process under the Fifth Amendment of the United States
Constitution. Id. The petitioner states that judges
treat the Advisory Guidelines for sentencing as mandatory
guidelines, and that his sentence should be corrected.
Id. at 3.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
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 an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected.
Court has conducted a de novo review of all portions
of the magistrate judge's report and recommendation. In
this case, for substantially the reasons stated by the
magistrate judge, this Court finds that this Court lacks
subject matter jurisdiction. As the magistrate judge
correctly stated, the petitioner was sentenced under the
post-Booker,  advisory Sentencing Guidelines and
therefore cannot satisfy the fourth prong under
Wheeler, 886 F.3d at 429. See ECF No. 14 at
8. The magistrate judge correctly found that the petitioner
has not satisfied the 28 U.S.C. § 2255(e) savings clause
and is not entitled to § 2241 relief. Id.
Moreover, this Court finds that the petitioner's
contention pertaining to how judges treat the Advisory
Guidelines for sentencing as mandatory guidelines is without
merit. Accordingly, this Court upholds the magistrate
judge's recommendation and overrules the petitioner's
reasons discussed above, the report and recommendation of the
magistrate judge (ECF No. 14) is hereby AFFIRMED and ADOPTED
in its entirety and the petitioner's objections (ECF No.
16) are OVERRULED. The petitioner's petition for writ of
habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) is
DENIED and DISMISSED WITHOUT PREJUDICE.
further ORDERED that this case be DISMISSED and STRICKEN from
the active docket of this Court.
the petitioner choose to appeal the judgment of this Court to
the United States Court of Appeals for the Fourth Circuit on
the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk ...