United States District Court, N.D. West Virginia, Wheeling
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
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
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. According to the BOP website, petitioner
is scheduled to be released on October 8, 2031.
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
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].
STANDARD OF REVIEW
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).
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).
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.
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
(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 § 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 ...