Turner v. Saad

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 05/14/2019. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 5/14/2019: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MILIK TURNER,
Petitioner,
v.

CIVIL ACTION NO.: 3:18-CV-26
(GROH)

JENNIFER SAAD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation (AR&R@) of United States
Magistrate Judge Robert W. Trumble. 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 [ECF No. 11] on April 9, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner=s § 2241 petition [ECF No. 1]
be denied and dismissed without prejudice.
I. 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). The Petitioner accepted
service of Magistrate Judge Trumble’s R&R on April 15, 2019. ECF No. 12. On April
29, 2019, the Petitioner moved the Court for an extension of time to file his objections.
ECF No. 13. The Court granted the motion and ordered that the Petitioner file his
objections on or before May 15, 2019. ECF No. 14. On May 13, 2019, the Petitioner
filed his objections. ECF No. 16. Accordingly, this Court will review the portions of the
R&R to which the Petitioner objects de novo.
II. Background
On February 16, 2018, the Petitioner filed an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.

ECF No. 1.

Therein, the Petitioner challenges a

sentence imposed by the United States District Court for the Eastern District of Michigan.
Specifically, the Petitioner asserts that he was erroneously sentenced as a career
offender.

The Petitioner argues that, following Mathis v. United States, his prior

convictions do not qualify as predicate offenses for a career offender enhancement.
Therefore, the Petitioner requests that this Court: (1) remove the career offender
enhancement; and (2) resentence him without any enhancement.
III. Applicable Law
Generally, a prisoner seeking to challenge the validity of his conviction or sentence
must proceed under 28 U.S.C. § 2255 in the district court of conviction. 28 U.S.C. §
2255; see United States v. Hayman, 342 U.S. 205, 216-17 (1952).
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Nevertheless,

pursuant to the “savings clause,” a prisoner may challenge the validity of his conviction
or sentence under 28 U.S.C. § 2241 if it appears that a § 2255 motion is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under Wheeler, a
§ 2255 motion is inadequate or ineffective to test the legality of a sentence when the
following four conditions are met:
(1) at the time of sentencing, settled law of this circuit or the Supreme Court
established the legality of the sentence;
(2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the
aforementioned settled substantive law changed and was deemed to apply
retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
for second or successive motions; and
(4) due to this retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). If these four requirements
are met, the savings clause is satisfied, and a prisoner may challenge the legality of his
sentence under 28 U.S.C. § 2241. If any one of the requirements is not met, the court
is deprived of jurisdiction and may not “entertain [the petition] to begin with.” Id. at 425.
IV. Analysis
In this case, Magistrate Judge Trumble found that, regardless of whether the
Petitioner meets the first, second, and third prongs of Wheeler, the savings clause is not
satisfied because the fourth prong is not met. Specifically, the magistrate judge found
that the Petitioner’s sentence does not present an error sufficiently grave to be deemed
a fundamental defect. ECF No. 11 at 8. Citing to Lester v. Flournoy, Magistrate Judge
Trumble determined that a misclassification as a career offender is only a fundamental
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defect if the sentencing occurred pre-Booker, when the sentencing guidelines were
mandatory. Because the Petitioner’s sentence was imposed under the post-Booker,
advisory guidelines, Magistrate Judge Trumble found that the Petitioner’s sentence does
not present an error sufficiently grave to be deemed a fundamental defect.
In his objections, the Petitioner argues that the fourth prong of Wheeler is satisfied
because his guideline range was significantly increased based on his career offender
classification. See ECF No. 16 at 4-5. He further argues that Lester is not applicable
to his case because the Fourth Circuit was not presented with the legal question of
whether a misclassification as a career offender under the advisory guidelines is an error
sufficiently grave to be deemed a fundamental defect. Id. at 4.
Having reviewed the R&R, the Petitioner’s objections, and the controlling law in
this Circuit, this Court finds that the Petitioner has not satisfied the fourth prong of
Wheeler. In Lester, the Fourth Circuit held that Wheeler would not apply if the Petitioner
had “been sentenced under the advisory Guidelines.” Lester v. Flournoy, 909 F.3d 708,
715 (4th Cir. 2018).

Because advisory guidelines “lack legal force” an erroneous

advisory Guidelines classification is not a fundamental defect.

Id.

Accordingly,

because the Petitioner in this case was sentenced under the post-Booker advisory
guidelines, the misclassification as a career offender is not a fundamental defect.
Therefore, the Petitioner cannot satisfy the fourth prong of Wheeler.
V. Conclusion
For the reasons provided herein, it is the opinion of this Court that Magistrate Judge
Trumble=s Report and Recommendation [ECF No. 11] should be, and is hereby,
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ORDERED ADOPTED.

Therefore, the Petitioner’s § 2241 Petition [ECF No. 1] is

DENIED and DISMISSED WITHOUT PREJUDICE.
This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk
of Court is DIRECTED to mail a copy of this Order to the Petitioner by certified mail, return
receipt requested, at his last known address as reflected on the docket sheet.
DATED: May 14, 2019

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