Samuels v. Kallis
Filing
26
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 20 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: it is further ORDERED that this case be DISMISSED WITHOUT PREJUDICE and Stricken from the active docket of this case. Because the petitioner fai led to object to the report and recommendation, he has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 1/14/2019. (copy to Pro Se Petitioner via CM,rrr) (nmm) (Additional attachment(s) added on 1/14/2019: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELVIN D. SAMUELS,
Petitioner,
v.
Civil Action No. 5:17CV163
(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, Melvin D. Samuels, 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 denied and dismissed without
prejudice.
ECF No. 20 at 9.
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.
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 petitioner filed a motion for an extension of time to file
objections to the magistrate judge’s report and recommendation.
ECF No. 23.
This Court granted that motion and directed the
petitioner to file objections to the magistrate judge’s report and
recommendation on or before September 28, 2018. ECF No. 24 at 1-2.
Neither party has filed objections.
II.
The pro se
Facts
petitioner who was then incarcerated at FCI
Hazelton (ECF No. 1 at 1), is serving a sentence imposed by the
United States District Court for the Eastern District of Virginia.
ECF No. 1 at 2.
The petitioner filed a petition for habeas corpus
under 28 U.S.C. § 2241, in which he alleges that his sentence as a
career criminal is no longer valid.
Id. at 5.
The petitioner
argues that “[a]t the time of sentencing the Court determined that
Samuels
was
convictions.”
a
Id.
career
offender
based
upon
four
Virginia
The petitioner states, “[r]ecently the Supreme
Court clarified that a court must evaluate the predicate by looking
only to the elements of the targeted crime. The sentencing [C]ourt
did not do that therefore Samuels is innocent of the kind of
offenses necessary for the career offender.”
Id.
In the attached
memorandum of law in support of his petition, the petitioner
asserts that: (1) the federal statute prohibiting possession of a
saw-off shotgun does not meet the requirements of a crime of
violence after Mathis v. United States, 136 S. Ct. 2243 (2016), (2)
2
“Virginia’s maiming statute does not meet the elements for a crime
of violence,” (3) “Virginia robbery is categorically not a crime of
violence,” and (4) his prior offense for use of a firearm during
the commission of a felony does not meet the definition of a crime
of violence.
ECF No. 1-1 at 17-26.
The petitioner requests that
the Court vacate the career offender enhancement and sentence him
again without that provision of the sentencing guidelines.
Id.
at 30.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
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 after applying the test set out in United States v. Wheeler,
886 F.3d 415 (4th Cir. 2018).
Id.
3
at 7.
Specifically, the
magistrate judge notes that the petitioner has not established that
after his first § 2255 motion, settled substantive law that
established the legality of his sentence changed and was deemed to
apply retroactively on collateral review.
judge
also
notes
that
“district
courts
Id.
in
The magistrate
this
Circuit
and
elsewhere have held that Mathis does not represent a substantive
change in the law.”
Id. at 7-8.
Therefore, the magistrate judge
concludes that it does not have jurisdiction to consider the
petition.
the
Id. at
petitioner’s
prejudice.
8-9.
The magistrate judge thus recommends that
petition
be
denied
and
dismissed
without
Id. at 9.
This Court finds no error in the determinations of the
magistrate judge and thus upholds his recommendation.
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. 20) is hereby AFFIRMED and ADOPTED in its entirety.
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
4
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.
DATED:
January 14, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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