Guerra v. Saad

Filing 15

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 10 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING 14 PETITIONERS OBJECTIONS: 1 Petitioner's petition for writ of habeas corpus is DENIED. It is further ORDERED that this c ase be DISMISSED WITHOUT PREJUDICE and STRICKEN from the active docket of this Court. Should the petitioner choose to appeal the judgment, he is ADVISED that he must file a notice of appeal with the Clerk of this Court within 60 days after the date of entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 2/14/2019. (copy to Pro Se Petitioner via CM,rrr) (nmm) Modified docket text on 2/14/2019 to correct link to Objections (nmm). (Additional attachment(s) added on 2/14/2019: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JESSIE NORBERTO GUERRA,
Petitioner,
v.

Civil Action No. 5:17CV97
(STAMP)

JENNIFER 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, Jesse Norberto Guerra (“Guerra”), an
inmate incarcerated at FCI Gilmer in Glenville, West Virginia,
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241
(“§ 2241”) challenging the validity of his sentence.

In his

petition, the petitioner argues that the sentence imposed by the
United States District Court for the Southern District of Texas is
improper because he is not a career offender.
petitioner

requests

that

“the

career

offender

For relief, the
enhancement

be

removed and his sentence vacated [and] he be remanded back for
re-sentencing without the career offender designation.”

ECF No. 1

at 5.

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).

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 petition be denied and dismissed without prejudice.
No. 10.

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.

Following this Court’s order

granting the petitioner’s motion requesting an extension of time
(ECF No. 13), the petitioner filed objections.

ECF No. 14.

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
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
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).

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Because the petitioner filed objections to

2

the

report

and

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo.
III.

Discussion

On de novo review, this Court finds that petitioner’s § 2241
petition does not seek relief under any permissible ground as his
claims do not relate to the execution or calculation of his
sentence by the Federal Bureau of Prisons (“BOP”).

Instead,

petitioner’s claims attack the validity of his sentence, imposed by
the Southern District of Texas, and such claims are properly
contested either on direct appeal or in a § 2255 proceeding; thus,
the instant petition is an attempt to obtain relief under § 2255,
and should be treated accordingly.
In

his

recommendation,

the

magistrate

judge

properly

recommended that the petitioner’s § 2241 petition be dismissed
without prejudice after finding that the petitioner’s claim is not
properly brought under § 2241.

The magistrate judge correctly

found that because the petitioner is challenging the validity of
his sentence, not his conviction, the Court must apply United
States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), to determine
whether § 2255 is inadequate or ineffective.

Here, the magistrate

judge found that “the [p]etitioner cannot meet the second element
of the Wheeler test, because the [p]etitioner has identified no
change in settled law expressed by either the Supreme Court or the

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Fourth Circuit which has been deemed to apply retroactively to
cases on collateral review.”

ECF No. 10 at 9.

In the report and recommendation, the magistrate judge noted
that petitioner’s reliance on Mathis2 and Descamps3 is misplaced,
as neither apply retroactively in this Circuit.
9-10.

ECF No. 10 at

Further the magistrate judge noted that the authority cited

by the petitioner, namely case law from the United States Court of
Appeals for the Fifth and Tenth Circuits, is not binding precedent
in the United States Court of Appeals for the Fourth Circuit. Upon
de novo review of the petitioner’s argument and the report and
recommendation, this Court agrees.
In petitioner’s objections to the magistrate judge’s report
and recommendation (ECF No. 14), the petitioner lists what appears
to be five objections.

First, the petitioner asserts a general

objection regarding the lack of “clarity” in the report and
recommendation. ECF No. 14 at 1. In addition, petitioner contends
that the report and recommendation “fails to recognize the breadth
of the definition of inadequate or ineffective and makes a false
presumption that ignores the facts of this particular case.”
at 1-2.
exacting

Id.

Next, the petitioner states that “the [r]eport invents an
standard

[p]etitioner.”

[]

that

Id. at 2.

is

not

capable

of

excluding

Petitioner then argues that he is

2

Mathis v. United States, 136 S. Ct. 2243 (2016)

3

Descamps v. United States, 133 S. Ct. 2276 (2013)
4

challenging
applicable.

his

conviction

and

the

Jones

test

is,

in

fact,

Petitioner continues by stating that the “[r]eport

rejects any consideration of case law from the Fifth and Tenth
Circuit [] when such consideration is in the interest of justice.”
Id.

Lastly, petitioner asserts that the magistrate judge’s report

and recommendation “is no more than a boiler plate brief.”

Id.

Ultimately, petitioner then requests this Court independently
review the petition and grant the petitioner’s requested relief.
Id. at 3.
Upon de novo review, this Court finds that although petitioner
asserts that he is entitled to relief under the savings clause, it
is clear that he is not. Because petitioner is not challenging his
conviction, the test under In re Jones, 226 F.3d 328, 333-34 (4th
Cir. 2000), does not apply and, instead, this Court must review the
petition under the four prong savings clause test under United
States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), for erroneous
sentences. The magistrate judge properly analyzed the petitioner’s
petition accordingly.
In Wheeler, the United States Court of Appeals for the Fourth
Circuit concluded that § 2255(e) provides “an avenue for prisoners
to test the legality of their sentences pursuant to § 2241, and
Jones is applicable to fundamental sentencing errors, as well as
undermined convictions.”

Id. at 428.

When contesting a sentence

through a petition filed under § 2241, a petitioner still must meet

5

the savings clause of § 2255.

In the Fourth Circuit, § 2255 is

deemed to be “inadequate and ineffective” to test the legality of
a sentence only when all four of the following conditions are
satisfied:
(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.
Wheeler, supra, at 429.
The

Fourth

Circuit

further

specified

that

a

change

of

substantive law within the Circuit, not solely in the Supreme
Court, would be sufficient to satisfy the second prong of the
four-part test established in Wheeler.

Id.

As to the first prong, this Court finds that it is clear that
at the time of sentencing, settled law established the legality of
the

sentence

imposed.

However,

this

Court

finds

that

the

petitioner cannot meet the second prong of the Wheeler, because any
change to the settled law which established the legality of his
sentence has not been deemed to apply retroactively to cases on
collateral review.

As the magistrate judge correctly noted,

because petitioner cannot satisfy the second prong of the four-part

6

test set forth in Wheeler, this Court does not need to consider the
third or fourth parts of the test, and petitioner’s claim fails.
Upon de novo review, this Court also finds that to the extent
the petitioner is impliedly raising arguments based upon the
Supreme Court’s decisions in Mathis and Descamps, this Court finds
that neither of those decisions afford petitioner relief.

This

Court also finds that the magistrate judge correctly noted that
petitioner’s reliance on authority for the Fifth and Tenth Circuit
Courts of Appeals is likewise unavailing.

As to petitioner’s

remaining objections, this Court finds that petitioner fails to
make

specific

objections

to

the

report

and

recommendation.

Further, this Court finds that the magistrate judge clearly and
appropriately analyzed the petition and specific facts of this case
under the appropriate standard of review.
Because the petitioner attacks the validity of his sentence,
but fails to establish that he meets all four prongs of the Wheeler
savings clause test for erroneous sentences, the petitioner cannot
demonstrate that § 2255 is an inadequate or ineffective remedy and
has improperly filed his petition under § 2241 with respect to his
sentence.

This Court finds because petitioner fails to meet the

second prong of the Wheeler test, his claims may not be considered
under § 2241, and this Court is without jurisdiction to consider
the petition.

Thus, this Court upholds the magistrate judge’s

recommendation and overrules the petitioner’s objections.

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IV.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 10) is hereby AFFIRMED and ADOPTED
in its entirety.

Accordingly, petitioner’s petition for writ of

habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) is DENIED, and the
petitioner’s objections (ECF No. 47) are OVERRULED.
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 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.
DATED:

February 14, 2019

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

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