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Rhodes v. Saad

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

January 6, 2020

TAVARRAS RHODES, Petitioner,
v.
JENNIFER SAAD, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY UNITED STATES DISTRICT JUDGE

         The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 24]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on December 11, 2019, wherein he recommends the Respondent's Motion to Dismiss [Doc. 18] be granted and the petition [Doc. 1] be denied and dismissed without prejudice. For the reasons that follow, this Court will adopt the R&R.

         I. BACKGROUND

         The petitioner is a federal inmate incarcerated at FCI Gilmer in the Northern District of West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on January 11, 2019, pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence. On November 7, 2008, petitioner was sentenced to 324 months imprisonment for two counts of violation of 21 U.S.C. § 841(a), conspiracy to possess with intent to distribute more than 100 grams of heroin.[1] According to the BOP website, petitioner is scheduled to be released on October 8, 2031.

         In his memorandum of law in support of his § 2241 petition, Rhodes argues that there has been a retroactive change in law after United States v. Simmons, 649 F.3d 237. [Doc. 1-1 at 6-8]. Specifically, Rhodes argues that Simmons represents a retroactive change in the law under which his sentencing as a career offender presents a fundamental defect. Id. at 7. The R&R notes that Rhodes made a similar Simmons-based argument in support of his 2011 petition under 28 U.S.C. § 2255. [Doc. 24 at 3].

         On November 4, 2019, respondent filed a motion to dismiss [Doc. 18]. In her memoranda in support, respondent argues that petitioner cannot meet all four prongs of the test in Wheeler to establish that a petition under § 2255 is inadequate or ineffective to test the legality of his sentence. [Doc. 19]. In particular, respondent argues that Rhodes cannot establish the fourth prong of the Wheeler test because "any error in applying the advisory Guidelines to a post-Boofcer career offender sentence is not a fundamental defect that results in a complete miscarriage of justice warranting collateral relief." [Doc. 19 at 8]. In response, Rhodes argues that, first, because the Government did not address the first three prongs of Wheeler, that he has met those prongs. [Doc. 22 at 2]. Second, Rhodes argues that his classification as a career offender is a fundamental defect. Id. at 3. In reply, the respondent again argues that under Fourth Circuit precedent, petitioner's sentence under the advisory guidelines, even if there was an error in applying the guidelines, does not constitute a fundamental error. [Doc. 23].

         II. STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which 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 as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         In addition, failure to file timely objections constitutes a waiver of de novo review and the 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, 111 F.2d 91, 94 (4th Cir. 1984). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1971).

         Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. The petitioner timely filed his Objections to the Magistrate Judge's Report and Recommendation [Doc. 25] on December 30, 2019. Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         III. DISCUSSION

         Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal custody to test the legality of his detention. However, § 2255(e) contains a savings clause, which allows a district court to consider a habeas petition brought by a federal prisoner under § 2241 where § 2255 is "inadequate or ineffective to test the legality" of the detention. 28 U.S.C. § 2255; see also United States v. Poole, 531 F.3d 263, 270 (4th Cir. 2008). The fact that relief under § 2255 is procedurally barred does not render the remedy inadequate or ineffective to test the legality of a prisoner's detention. In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a § 2255 petition is only inadequate or ineffective to test the legality of detention when:

(1) [A]t the time of conviction, settled law in this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first ยง 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the ...

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