Tazewell v. Entzel
Filing
18
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING PETITIONER' OBJECTIONS AND DISMISSING CIVIL ACTION WITHOUT PREJUDICE. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/15/19. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 3/15/2019: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TREMAINE TAZEWELL,
Petitioner,
v.
Civil Action No. 5:18CV50
(STAMP)
FREDERICK ENTZEL, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER’S OBJECTIONS AND
DISMISSING CIVIL ACTION WITHOUT PREJUDICE
I.
Background
The pro se1 petitioner filed a petition for habeas corpus
under 28 U.S.C. § 2241.
ECF No. 1.
In the petition, the
petitioner contends that “he is in custody in violation of the
Constitution or the laws of the United States because he does not
have the necessary predicate convictions to qualify for an enhanced
punishment.”
Id. at 5.
The petitioner relies on the following
cases: Descamps v. United States, 133 S. Ct. 2276 (2013), and
Mathis v. United States, 136 S. Ct. 2243 (2016).
The petitioner
seeks a writ of habeas corpus stating that he is entitled to relief
from his unconstitutional sentence.
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Id. at 8.
“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).
United States Magistrate Judge James P. Mazzone entered a
report and recommendation, in which he recommends that the § 2241
petition be denied and dismissed without prejudice.
ECF No.
14
at 12.
The
petitioner
filed
objections.
ECF
No.
16.
In
his
objections, the petitioner first argues that the magistrate judge
erred by failing to apply the savings clause to the petitioner’s
sentence.
Id. at 1.
Specifically, the petitioner argues that the
petitioner meets the fourth prong because “[p]etitioner’s prior NY
State conviction for attempted criminal possession in the [third]
degree (used to impose a mandatory minimum sentence in this case)
no
longer
‘qualifies
punishment.”
Id. at 2.
as
a
predicate
offense’
for
enhanced
Therefore, the petitioner argues that he
has demonstrated that his current sentence is “sufficiently grave
to be deemed a fundamental defect.”
at 430).
Id. (citing Wheeler, 886 F.3d
Moreover, the petitioner asserts that Wheeler’s second
prong is met since Mathis v. United States, 136 S. Ct. 2243 (2016),
is retroactive; therefore, he has demonstrated that he has relied
on a “substantive change in decisional law that has been ‘made
retroactive on collateral review.’”
Id. (citing Wheeler, 886 F.3d
at 429) (emphasis omitted).
For the reasons set forth below, the report and recommendation
of the magistrate judge (ECF No. 14) is affirmed and adopted, and
the petitioner’s objections (ECF No. 16) are overruled.
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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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As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
to
the
report
and
Because the petitioner filed objections
recommendation,
the
magistrate
judge’s
recommendation will be reviewed de novo.
III.
First,
the
magistrate
Discussion
judge
correctly
found
that
the
petitioner is not entitled to the savings clause under 28 U.S.C.
§ 2255.
Id. at 9.
Because the petitioner is not challenging his
conviction, the test in In re Jones, 226 F.3d 328, 333-34 (4th Cir.
2000), is inapplicable.
Id.
Rather, since the petitioner is
3
challenging his sentence, the four part test in United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018), applies.
Id.
Second, the magistrate judge correctly concluded that because
the petitioner cannot meet the second element of the Wheeler test,
the petitioner’s claims cannot be considered under § 2241, and the
Court does not have jurisdiction to consider the petition.
Id.
at 11.
Therefore, this Court agrees with the magistrate judge’s
conclusion and adopts and affirms the report and recommendation in
its entirety.
IV.
Conclusion
For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 14) is AFFIRMED and ADOPTED and
the petitioner’s objections (ECF No. 16) are OVERRULED.
further
ORDERED
that
this
civil
action
be
DISMISSED
It is
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
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counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
March 15, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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