Weaver v. Masters

Filing 11

MEMORANDUM OPINION AND ORDER: The court adopts Magistrate Judge Aboulhosn's PF&R as follows: 1) Petitioner's 1 Application for Writ of Habeas Corpus by a Person in Federal Custody Pursuant to 28 U.S.C. § 2241 is CONSTRUED as a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255; and 2) Petitioner's Application for Writ of Habeas Corpus is TRANSFERRED to the United States District Court for the Southern District of Florida. Signed by Senior Judge David A. Faber on 2/1/2017. (cc: Petitioner; attys; Clerk, Southern District of Florida) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JASON PRICE WEAVER,
Petitioner,
v.

CIVIL ACTION NO. 1:14-027510

BART MASTERS, Warden,
Respondent.

MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 3).
Magistrate Judge Aboulhosn submitted to the court his PF&R
on June 21, 2016, in which he recommended that the Court
construe Petitioner’s Application for Writ of Habeas Corpus by a
Person in Federal Custody Pursuant to 28 U.S.C. § 2241 (Doc. No.
1) as a Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, and transfer it to the United States District
Court for the Southern District of Florida.

Magistrate Judge

Aboulhosn notified Petitioner that if he intended to file a
Johnson claim, he had to do so before June 26, 2016.

Petitioner

was further notified that nothing in the PF&R, or any Objections
1 

thereto, could change or extend this deadline.

Petitioner had

to file a Section 2255 Motion based on a Johnson claim with the
Southern District of Florida before June 26, 2016.

On July 8,

2016, Petitioner filed his Response to the PF&R asserting his
Johnson v. United States, 135 S.Ct. 2551(2015), claim.

(Doc.

No. 10).
In accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
Magistrate Judge Aboulhosn’s PF&R.

The failure of any party to

file such objections within the time allotted constitutes a
waiver of such party’s right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Neither

party filed any objections to the Magistrate Judge’s PF&R within
the required time period.
Accordingly, the court adopts Magistrate Judge Aboulhosn’s
PF&R as follows:
1) Petitioner’s Application for Writ of Habeas Corpus by a
Person in Federal Custody Pursuant to 28 U.S.C. § 2241
(Doc. No. 1) is CONSTRUED as a Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255; and

2 

2) Petitioner’s Application for Writ of Habeas Corpus is
TRANSFERRED to the United States District Court for the
Southern District of Florida.1
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record, to
Petitioner, and to the Clerk of the United States District Court
for the Southern District of Florida.
It is SO ORDERED this 1st day of February, 2017.

ENTER:

David A. Faber
Senior United States District Judge

1

In his response to the PF&R (Doc. No. 10), Petitioner asks
the court to add this action to the § 2255 motion he recently
filed with the United States Court of Appeals for the Eleventh
Circuit. This request is best left to the determination of the
United States District Court for the Southern District of
Florida.
3