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Howard v. Entzel

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

December 19, 2019

LAFAYETTE HOWARD, Petitioner,
v.
FREDERICK ENTZEL, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          GINA M. GROH, CHIEF UNITED STATES DISTRICT JUDGE

         Now before the Court is the Report and Recommendation (AR&R@) of United States Magistrate Judge Robert W. Trumble. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble issued his R&R [ECF No. 32] on October 29, 2019. Therein, Magistrate Judge Trumble recommends that the Petitioner's § 2241 petition [ECF No. 1] and amended petition [ECF No. 10] be denied and dismissed without prejudice. Magistrate Judge Trumble further recommends that Respondent's Motion to Dismiss or in the Alternative, Motion for Summary Judgment [ECF No. 21] be granted.

         I. Standard of Review

         Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of the magistrate judge's findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of a petitioner's 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).

         Objections to Magistrate Judge Trumble's R&R were due within fourteen plus three days of service. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Petitioner accepted service of Magistrate Judge Trumble's R&R on November 22, 2019. ECF No. 36. On December 5, 2019, the Petitioner filed his objections. ECF No. 37. Accordingly, this Court will review the portions of the R&R to which the Petitioner objects de novo.

         II. Background

         On August 30, 2018, the Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. An amended petition was filed on February 25, 2019, wherein the Petitioner challenges a sentence imposed by the United States District Court for the Western District of Tennessee, Eastern Division. ECF No. 10. Specifically, the Petitioner asserts that he was erroneously sentenced as a career offender. The Petitioner argues that following United States v. Stitt, 860 F.3d 864 (6th Cir. 2017) and Mathis v. United States, 136 S.Ct. 2243 (2016), his prior convictions for aggravated burglary no longer qualify as predicate offenses for the career offender enhancement. Therefore, the Petitioner requests that this Court (1) vacate his sentence as a career offender and (2) reimpose a sentence of time served.

         On August 26, 2019, the Respondent filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 21. Therein, the Respondent argues that the Petitioner fails to meet the second prong of the Wheeler test because Tennessee's aggravated burglary statute has not changed in light of Stitt. Based on this lack of change in substantive law, the Respondent moves for dismissal of the Petitioner's § 2241 petition.

         III. Applicable Law

         Generally, a prisoner seeking to challenge the validity of his conviction or sentence must proceed under 28 U.S.C. § 2255 in the district court of conviction. 28 U.S.C. § 2255; see United States v. Hayman, 342 U.S. 205, 216-17 (1952). Nevertheless, pursuant to the “savings clause, ” a prisoner may challenge the validity of his conviction or sentence under 28 U.S.C. § 2241 if it appears that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under Wheeler, a § 2255 motion is inadequate or ineffective to test the legality of a sentence when the following four conditions are met:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and
(4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a ...

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