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, Rivas Nelson, is incarcerated
at USP Hazelton where he is serving a sentence imposed by the
United States District Court for the Eastern District of
Wisconsin. ECF No. 1 at 2. The petitioner filed a Petition
for Habeas Corpus Under 28 U.S.C. § 2241, in which he
states that his “prior drug conviction no longer
qualifies as a predicate for § 851 enhancement under
Simmons and now Wheeler.”
Id. at 8. For relief, the petitioner seeks that this
Court “grant the appropriate relief within its habeas
powers to vacate Petitioner's fundamentally defected
sentence in the interest of justice. Or grant the relief that
this court finds appropriate.” Id.
respondent filed a motion to dismiss (ECF No. 17) and a
memorandum in support thereof (ECF No. 18). In his memorandum
in support, the respondent asserts that the petitioner's
petition should be dismissed for lack of jurisdiction because
he cannot demonstrate that 28 U.S.C. § 2255 is
inadequate and ineffective to challenge the legality of his
sentence. ECF No. 18 at 5. Specifically, the respondent
contends that the petitioner cannot meet the second prong of
the Wheeler test, because he failed to identify a
retroactive United States Court of Appeals for the Seventh
Circuit decision that would substantively change the law
applicable to his conviction. Id. at 6. The
respondent asserts that Simmons does not afford the
petitioner relief and is inapplicable in this civil action.
Id. at 9.
petitioner then filed a response to the respondent's
motion to dismiss. ECF No. 23. In his response, the
petitioner states that “[u]pon review of the legal
arguments espoused by the government in the instant action,
Rivas apprises the court that he is content to rest
upon the record as it presently stands in relation to his
adopted legal posture.” Id. at 5.
respondent then filed a reply maintaining that the Court
lacks jurisdiction to consider the petitioner's petition.
ECF No. 25 at 1.
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. 26) recommending that the
respondent's motion to dismiss (ECF No. 17) be granted
and that the petitioner's petition be denied and
dismissed without prejudice. ECF No. 26 at 9. 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
found that the petitioner has failed to meet the second prong
of the Wheeler test, because he has failed to
identify a retroactive Seventh Circuit decision that would
substantively change the law applicable to his sentence.
Id. at 6. The magistrate judge also properly noted
that Simmons is a United States Court of Appeals for
the Fourth Circuit decision which is not binding on other
courts in other circuits. Id. at 7. Moreover, the
magistrate judge correctly indicated that even if
Simmons were applicable to the petitioner's
conviction, it would not invalidate his sentence.
Id. at 8.
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. 26) is AFFIRMED and ADOPTED in its
entirety. Accordingly, the respondent's motion to dismiss
(ECF No. 17) is GRANTED and the petition for writ of habeas
corpus pursuant ...