Payne v. Kallis

Filing 8

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 6 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: the petitioner's 1 petition for writ of habeas corpus is DENIED. It is ORDERED this case be DISMISSED WITHOUT PREJUDICE and STRICKEN from the active docket. Because the petitioner failed to object, he has waived his right to seek appellate review. the Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/2018. (copy to Pro Se Petitioner via CM,rrr) (nmm) (Additional attachment(s) added on 9/5/2018: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES O. PAYNE,
Petitioner,
v.

Civil Action No. 5:17CV89
(STAMP)

S. KALLIS, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The pro se1 petitioner, James O. Payne, filed a petition for
habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).

The action was

referred to United States Magistrate Judge James E. Seibert for
initial review and report and recommendation pursuant to Local Rule
of Prisoner Litigation Procedure 2.
The

magistrate

judge

filed

a

report

and

recommendation

recommending that this matter be dismissed without prejudice.
No. 6 at 9.

ECF

The magistrate judge informed the parties that if they

objected to any portion of the report and recommendation, they were
required to file written objections within 14 days after being
served with copies of the report.

Id.

Neither party filed

objections.

1

“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).

II.
The

pro

se

petitioner

Facts
is

currently

incarcerated

at

FCI-Allenwood Low, where he is serving a sentence imposed by the
United

States

Pennsylvania.

District

Court

for

the

ECF Nos. 5 at 1, 6 at 2.

Middle

District

of

The petitioner filed a

petition for habeas corpus under 28 U.S.C. § 2241, in which he
alleges that the “[p]rior conviction of simple assault 2701(d)
[was] used to enhance as a career offender, although Pennsylvania
simple assault is no longer a crime of violence in Pennsylvania.
It is no longer a violent felony in light of Mathis.”
at

5.

The

petitioner

argues

that

§

2255

is

ECF No. 1

inadequate

or

ineffective to test the legality of his detention because “Johnson
could not be used to make a void for vagueness challenge nor was it
made retroactive for career offender challenges under the 2255
motion.”

ECF No. 1 at 6, 9.

In the petition, the petitioner

requests that this Court vacate and/or remand for resentencing
without the application of the career offender enhancement.

ECF

No. 1 at 8.

Moreover, the petitioner argues that based on

Amendment

to

782

the

Sentencing

Guidelines,

his

sentencing

guideline range would be reduced to 77-96 months based on a level
of 21.

Id.

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.

2

III.

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 objection is timely made.
file

any

objections

to

the

Because the petitioner did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

In his report and recommendation, the magistrate judge finds
that the petitioner is not entitled to relief under the savings
clause.

ECF No. 6 at 7.

The magistrate judge begins by stating

that a remedy under § 2255 is inadequate or ineffective when all
three of the following conditions are satisfied:
(1) at the time of the conviction, settled law of [the
Fourth Circuit] or of the Supreme Court established the
legality of the conviction; (2) subsequent to the
prisoner’s direct appeal and first [§] 2255 motion, the
substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal,
and (3) the prisoner cannot satisfy the gate-keeping
provisions of [§] 2255 because the new rule is not one of
constitutional law.
Id. at 6 (citing In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000)
(emphasis added)). The magistrate judge then concluded that to the
extent petitioner is challenging his conviction, the crimes for
which he was convicted of remain criminal offenses, and therefore
he fails to meet the second element of Jones.

3

Id.

The magistrate judge then proceeded to apply the Wheeler test.
Id. at 7.

Under this test, § 2255 is “inadequate and ineffective”

to test the legality of a sentence when:
(1) at the time of sentencing, settled law of [the Fourth
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.
Id. at 7 (citing United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018) (emphasis added)).

The magistrate judge finds that the

petitioner cannot meet the second element in Wheeler because any
change to settled law which established the legality of the
petitioner’s sentence has not been deemed to apply retroactively to
cases on collateral review, and, therefore the petitioner cannot
demonstrate that § 2255 is an inadequate or ineffective remedy.
Id.
Moreover, the magistrate judge found that with respect to the
petitioner’s argument regarding Amendment 782, since the petitioner
previously filed a motion pursuant to 18 U.S.C. § 3562(c)(2) and
Amendment 782 and 788 in the sentencing court, and because the
sentencing court denied that motion, res judicata applies and the
Court cannot consider this argument.

Id. at 8.

This Court finds

no error in the determinations of the magistrate judge and thus
upholds his recommendation.
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V.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 7) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, the petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DENIED.
It is further ORDERED that this case be DISMISSED WITHOUT
PREJUDICE and STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail.

Pursuant to Federal Rule of Civil

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

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DATED:

September 5, 2018

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

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