Merrick v. Saad

Filing 27

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 8 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING PETITIONER'S 12 OBJECTIONS. Petitioner's post-objection motions to take notice 14 15 16 17 18 19 20 [21 ] 22 23 24 25 26 are DENIED AS MOOT. It is further ORDERED that this case be DISMISSED WITHOUT PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter.Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/18. (Pro Se Plaintiff via CM/rrr) (lmm)(lmm) (Additional attachment(s) added on 9/5/2018: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTHONY MERRICK,
Petitioner,
v.

Civil Action No. 5:16CV90
(STAMP)

J. SAAD, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND OVERRULING PETITIONER’S OBJECTIONS
I.

Procedural History

The pro se1 petitioner is a federal inmate who is housed at
FCI Hazelton.

The petitioner filed a Petition for Habeas Corpus

under 28 U.S.C. § 2241.

ECF No. 1.

In the petition, the

petitioner challenges the legality of his sentence.
at 5.

ECF No. 1

The petitioner contends that his previous conviction for

drug crimes under New York law do not fall under the Controlled
Substance Act, and he therefore asks to be resentenced without the
career offender status.

ECF No. 1 at 5, 8.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States
Magistrate Judge Michael John Aloi.

The magistrate judge entered

a report and recommendation on September 6, 2017.
1

ECF No. 8.

In

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

that recommendation, the magistrate judge recommended that the
petition be dismissed.

ECF No. 8 at 7.

The magistrate judge found

that the petition challenges the validity of the petitioner’s
sentence, and as such is improperly brought as a petition under
§ 2241.

ECF No. 8 at 5.

The magistrate judge found that the

savings clause of § 2255 does not extend to challenges to a
petitioner’s sentence. ECF No. 8 at 6. Thus, the magistrate judge
found that this Court must dismiss the petition for lack of
jurisdiction.
The

ECF No. 8 at 7.

petitioner

timely

filed

objections

and

specifically

objects to the magistrate judge’s recommendation that his petition
be dismissed for lack of jurisdiction.

ECF No. 12.

In support,

petitioner sets forth several cases which he contends provide
authority which contradicts the magistrate judge’s analysis of his
petition.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.

As to those findings to which

objections were not filed, all findings and recommendations will be

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upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

Because the petitioner filed objections to the report and
recommendation,

this

Court

reviews

the

magistrate

judge’s

recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge (ECF No. 8)
overrules the petitioner’s objections (ECF No. 12), and dismisses
the petition (ECF No. 1) without prejudice.
In his objections, petitioner brings to the Court’s attention
United States v. Smith, 698 F. App’x 155 (4th Cir. 2017), which, at
the time of the petitioner’s objections, was pending before the
United States Court of Appeals for the Fourth Circuit.
at 1.

ECF No. 12

Petitioner asks this Court to stay this case pending the

outcome of Smith.

ECF No. 12 at 3.

Further, the petitioner argues

that under Mathis v. United States, 136 S. Ct. 2243 (2016), there
has been a substantive change in law that affects the legality of
his sentence, and as such his claim falls under the savings clause
of § 2255.

ECF No. 12 at 4-5.

The petitioner contends that Mathis

has retroactive affect and as such, this Court must reject the
report

and

recommendation.

ECF

No.

12

at

8-9.

Next,

the

petitioner argues that refusing to resentence him violates his due

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process

because

his

previous

convictions

do

not

qualify

as

controlled substance offenses under the Controlled Substance Act.
ECF No. 12 at 10-11.

The petitioner maintains that without the

career offender status, he would likely have received a less severe
sentence.

ECF No. 12 at 11.

Lastly, the petitioner argues that

the magistrate judge erred in interpreting In re Jones, 226 F.3d
328.

ECF No. 12 at 13.

The petitioner contends that the court in

Jones did not hold that all challenges to sentences were excluded
from the savings clause of § 2255.

ECF No. 12 at 13.

Rather, the

petitioner contends that Jones dealt only with a challenge to the
validity of the petitioner’s conviction, and therefore it is
inapplicable to challenges to the validity of a sentence.

ECF No.

12 at 13.
After filing his objections, the petitioner also filed a
motion for the Court to take notice of United States v. Smith, 698
F. App’x 155 (4th Cir. 2017) (ECF No. 14), a motion to hold in
abeyance until a decision is reached in United States v. Wheeler,
886 F.3d 415 (4th Cir. 2018) (ECF No. 15), a motion to take notice
of Lester v. Flourney, No. 13-6956 (ECF No. 16), a motion to take
notice of a Rule 28(j) letter filed in Wheeler (ECF No. 17), a
motion to take notice of Class v. United States, 138 S. Ct. 798
(2018) (ECF No. 18), a motion to take notice of Jennings v.
Rodriguez, 138 S. Ct. 830 (2018) (ECF No. 19), a motion to take
notice of McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)

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(ECF No. 20), a motion to take notice of United States v. Wheeler
(ECF No. 21), a motion to take notice of United States v. Winstead,
890 F.3d 1082 (D.C. Cir. 2018) (ECF No. 22), a motion titled
“Merrick Seeks Relief in Light The Fourth Circuit’s Denial Of
Rehearing En Banc In Wheeler And To Take Notice Of That Ruling
Under Fed. R. Evid. 201(d)” (ECF No. 23), a motion for leave to
amend his argument under Wheeler (ECF No. 24), a motion to remand
the case back to the magistrate judge in light of Wheeler (ECF No.
25), and a motion to take notice of United States v. Townsend, No.
17-757-CR, 2018 WL 3520251 (2d Cir. July 23, 2018) (ECF No. 26).
Upon de novo review, this Court is of the opinion that the
magistrate judge’s report and recommendation should be adopted and
affirmed in its entirety and the petitioner’s objections should be
overruled in that the magistrate judge correctly found that where,
as here, a federal prisoner brings a § 2241 petition that does not
fall within the scope of the savings clause, the district court
must

dismiss

jurisdiction.

the

unauthorized

habeas

Rice, 617 F.3d at 807.

motion

for

lack

of

However, this Court notes

that soon after filing his objections, the petitioner filed various
motions which request that this Court take notice of several cases
and raises additional argument under “United States v. Wheeler, No.
16-6073 (4th Cir. 2016)” (ECF Nos. 15, 17, 21, 23, 24, 25), “Harbin
v. Sessions, No. 14-1433, 2017 U.S. App. LEXIS 10946 2d Cir. June
21, 2017)” (ECF No. 14), “Lester v. Flournoy, No. 13-6956 4th Cir.

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awaiting a decision” (ECF No. 16), “Class v. United States, No.
16-424, 2018 U.S. LEXIS 1378 (Feb., 21, 2018)” (ECF No. 18),
“Jennings v. Rodriguez, No. 15-1204, 2018 U.S. LEXIS 1516 (Feb. 27,
2018)” (ECF No. 19), “McDonald v. City of Chicago, 561 U.S. 742
(2010)” (ECF No. 20), “Winstead v. United States, No. 12-3036, 2018
U.S. App. LEXIS 13864 (D.C. Cir. May 25, 2018)” (ECF No. 22),
“Hill v. Masters, 536 F.3d 591 (6th Cir. 2016)” (ECF No. 23), and
“United States v. Townsend, No. 17-757-cr, 2018 U.S. App. LEXIS
20345 (2nd Cir. July 23, 2018)” (ECF No. 26).
Upon review of the petitioner’s post-objection motions, this
Court finds that it is appropriate to grant the petitioner’s
requests to take notice of the various cases by permitting the
petitioner to refile his petition and assert an amended and
comprehensive argument.

This Court finds that at the time the

magistrate judge’s report and recommendation was entered, it was
accurate and fully considered petitioner’s arguments based on
settled precedent.
has

since

However, to the extent that the Fourth Circuit

changed

the

savings

clause

and

the

petitioner

is

supplementing his earlier arguments with pending cases and requests
that the outcome of these cases may impact his instant petition,
this Court permits the petitioner to refile his petition in order
to assert appropriate argument under Wheeler with the appropriate
case law and citations in support once the pending issues are
ultimately resolved.

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IV.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 8) is hereby AFFIRMED and ADOPTED
and

the

petitioner’s

objections

(ECF

No.

12)

are

OVERRULED.

Petitioner’s post-objection “motions to take notice” (ECF Nos. 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26) are DENIED AS
MOOT.
It is further ORDERED that this case be DISMISSED WITHOUT
PREJUDICE and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

September 5, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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