Barrera v. Saad

Filing 22

ORDER 16 ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 8/13/2018. Copy to pro se petitioner by cm,rrr.(cmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

NORBERTO BARRERA,
Petitioner,
v.

CIVIL ACTION NO.: 3:17-CV-26
(GROH)

JENNIFER SAAD, Warden,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (AR&R@) of United
States Magistrate Judge Robert W. Trumble. ECF No. 16. Pursuant to this Court’s Local
Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed
R&R.

Magistrate Judge Trumble issued his R&R on June 27, 2018.

In his R&R,

Magistrate Judge Trumble recommends that the Petitioner=s § 2241 petition [ECF No. 1]
be denied and dismissed without prejudice.
I. Background
The Petitioner in this case was convicted of: (1) conspiracy to distribute marijuana
and (2) attempt to distribute marijuana. Although the Petitioner pled guilty, the Petitioner
maintains that he is factually innocent of the conspiracy to distribute marijuana charge.
Without the conspiracy conviction, the Petitioner asserts that the amount of marijuana
attributable to him, the applicable sentencing guidelines and the corresponding sentence
imposed would have been substantially lower. In the instant petition, the Petitioner

challenges (1) the indictment; (2) the plea; (3) the sentencing guidelines applied; and (4)
the sentence imposed.
II. Standard of Review
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review of
the magistrate judge=s findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a
Petitioner’s 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, 727 F.2d 91, 94 (4th Cir.
1984).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three
days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). Having timely filed
objections [see ECF No. 19], the Court will conduct a de novo review of the portions of
the R&R to which the Petitioner objects.
III. Discussion
Magistrate Judge Trumble recommended that the petition be dismissed because
all the issues presented are matters properly considered in a § 2255 motion. While
§.2255 contains a savings clause, Magistrate Judge Trumble determined that the
Petitioner is not entitled to its application. In his objections, the Petitioner does not dispute
that the issues presented in his petition are matters properly considered in a § 2255
motion. However, the Petitioner argues that he is entitled to relief under the savings
clause. Specifically, he asserts that there have been intervening changes in law entitling

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him to relief. Although Magistrate Judge Trumble addressed the alleged intervening
changes in law [see ECF Nos. 10 and 13], the Court will briefly review why the savings
clause is not applicable to the Petitioner’s claims.
First, the charges to which the Petitioner pled guilty remain unlawful.

The

Petitioner does not argue, nor could he, that there has been a change in law legalizing
conspiracy to distribute marijuana or attempt to distribute marijuana. As a result, the
Petitioner cannot satisfy the second Jones requirement. See In re Jones, 226 F.3d 328,
333-34 (4th Cir. 2000). Therefore, as addressed in the R&R, the savings clause is
inapplicable to the Petitioner’s attack on his underlying conviction. Next, the Petitioner
does not present a change in law that applies retroactively to his case on collateral review.
While he cites several cases in his objections, none are applicable here. For that reason,
the Petitioner does not meet the second prong of the Wheeler test. See United States v.
Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Consequently, as Magistrate Judge Trumble
correctly concluded, the savings clause does not apply to the Petitioner’s attack on the
validity of his sentence.
IV. Conclusion
In sum, the Petitioner does not meet the requirements for the savings clause
codified in 28 U.S.C. §.2255(e) and the Petitioner’s claims cannot be considered under §
2241.

Accordingly, upon careful review, the Court ORDERS that Magistrate Judge

Trumble’s Report and Recommendation [ECF No. 16] is ADOPTED for the reasons more
fully stated therein.

The Petitioner’s § 2241 Petition [ECF No. 1] is DENIED and

DISMISSED WITHOUT PREJUDICE. The Petitioner’s Motion for Expedited Review of
Petition [ECF No. 15] is DENIED AS MOOT.

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The Clerk is DIRECTED to strike this matter from the Court’s active docket. The
Clerk is further DIRECTED to transmit copies of this Order to all counsel of record herein
and to mail a copy of this Order to the pro se Petitioner by certified mail, return receipt
requested.
DATED: August 13, 2018

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