McMullin v. Saad

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 13 AND DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1 : The Court ADOPTS the R&R Dkt. No. 13 ; GRANTS the respondents Motion to Dismiss Dkt. No. 7 ; and DENIES and DISMISSES McMullins Petition WITHOUT PREJUDICE Dkt. No. 1 . Signed by Senior Judge Irene M. Keeley on 2/12/18. The Court directs the Clerk to enter a separate judgment order. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSEPH PATRICK MCMULLIN
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV227
(Judge Keeley)

JENNIFER SAAD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 13] AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
On December 2, 2018, the pro se petitioner, Joseph Patrick
McMullin (“McMullin”), filed a Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (“Petition”) (Dkt. No. 1). In his Petition,
McMullin challenges the sentencing enhancement applied to his case
under the Armed Career Criminal Act (“ACCA”). Id. at 6-7. Pursuant
to 28 U.S.C. § 636 and the local rules, the Court referred the
Petition to the Honorable Michael J. Aloi, United States Magistrate
Judge, for initial review.
In a Report and Recommendation (“R&R”) entered on January 11,
2018, Magistrate Judge Aloi recommended that the Court deny and
dismiss

McMullin’s

Petition

without

prejudice

(Dkt.

No.

13).

Because petitioners typically must attack their sentence under
§ 2255, and McMullin has not established that § 2255 is an
inadequate or ineffective remedy pursuant to In re Jones, 226 F.3d
328 (4th Cir. 2000), the R&R reasoned that McMullin cannot utilize
§ 2241 to challenge his ACCA enhancement (Dkt. No. 13 at 10). The
R&R also informed McMullin of his right to file “written objections

MCMULLIN v. SAAD

1:16CV227

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 13] AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
identifying the portions of the Recommendation to which objections
are made and the basis for such objections.” It further warned that
the failure to do so may result in waiver of the right to appeal.
Id. at 10-11. Although McMullin received the R&R on January 17,
2018 (Dkt. No. 14), he has filed no objections.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any
the

of

the

prisoner

magistrate
does

not

judge’s
object.”

Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Courts will uphold those portions of a recommendation to which no
objection has been made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Because

no

party

has

objected,

the

Court

is

under

no

obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
2d at 603-04. Upon review of the R&R and the record for clear
error, the Court:
1)

ADOPTS the R&R (Dkt. No. 13);

2

MCMULLIN V. SAAD

1:16CV227

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 13] AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
2)

GRANTS the respondent’s Motion to Dismiss (Dkt. No. 7);
and

3)

DENIES

and

DISMISSES

McMullin’s

Petition

WITHOUT

PREJUDICE (Dkt. No. 1).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: February 12, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3