Okafor v. Antonelli

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION 5 . This Court ORDERS that the § 2241 petition 1 be DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 8/25/2020. (copy to pro se Petitioner Cm/rrr)(ag) (Additional attachment(s) added on 8/25/2020: # 1 Certified Mail Return Receipt) (ag).

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 1 of 6 PageID #: 75

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
FELIX A. OKAFOR,

Petitioner,
v.

CIVIL ACTION NO. 5:20-CV-121

Judge Bailey
BRYAN M. ANTONELLI, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doc.

5]. Pursuant to this

Courts Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on August 4,2020, wherein he recommends the Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2241 [Doc. 1] be denied and dismissed without prejudice. For the reasons
that follow, this Court will adopt the R&R.
I. BACKGROUND
The petitioner is a federal inmate who is incarcerated at USP Hazelton in Bruceton
Mills, West Virginia. Petitioner, acting pro so, initiated this habeas corpus proceeding on
June 22, 2020, pursuant to 28 U.S.C.

§ 2241 challenging both his conviction and the

execution of his sentence in the Eastern District of North Carolina. On April 10, 2014,
petitionerwas sentenced to ninety-seven (97) months as to Counts One, Two, Three, Four,
Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, Twenty, Twenty-two, and Twenty
four, to run concurrently; sixty (60) months as to Count Five to run consecutively; and
three-hundred (300) months as to Counts Seven, Nine, Eleven, Thirteen, Fifteen,

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 2 of 6 PageID #: 76

Seventeen, Nineteen, Twenty-one, Twenty-three, and Twenty-five, each to run
consecutively, for a total term of imprisonment of 3157 months. According to the BOP
website, petitioner’s projected release date via a good conduct time is currently November
12, 2234. See bop.gov/inmateloc/.
In his petition, petitioner attacks both his conviction and sentence. Relying on
United States v. Davis, 139 S.Ct. 2319 (2019) and United States

i”.

Simms, 914 F.3d

229 (4th Cir. 2019), petitioner alleges that conspiracy is not a crime of violence, and
therefore, his 924(c) conviction must be vacated. Petitioner also alleges that the District
Court’s “execution of [his], current sentences and the subsequent imposition of financial
penalties, including a statutory mandated special assessment on each counts of the
conviction renders [his] sentence not truly concurrent.” [Doc. 1 at 7]. For relief, petitioner
states three grounds. First, he requests that his 924(c) conviction be vacated “that was
predicated on the conspiracy conviction.”

[Id. at 9].

Second, he requests that his

concurrent sentences, Counts Two, Three, Four, Six, Eight, Ten, Twelve, Fourteen,
Sixteen, Eighteen, Twenty, Twenty-two, and Twenty-four, be vacated “because the
imposition of the concurrent sentence and the subsequent imposition of the mandatory
special assessment rendered the ‘execution’ of the sentences on each of the count of
conviction not truly concurrent and inapplicable.” [Id.]. Third, petitioner requests a vacatur
of the special assessment. [Id.].
On August 4, 2020, Magistrate Judge Mazzone issued his R&R. The magistrate
judge found that because the petitioner cannot satisfy the savings clause of § 2255(e), his
claim may not be considered under § 2241 due to the fact this Court is without jurisdiction
to consider his petition. [Doc. Sat 11-12]. Accordingly, the R&R recommends the petition
be denied and dismissed without prejudice. [Id. at 11].
2

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 3 of 6 PageID #: 77

II. STANDARD OF REVIEW
Pursuant to 28 U.S.C.

§ 636(b)(1)(c), this Court is required to make a do novo

review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a do novo review when the party makes
only “general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of do novo review and
the right to appeal this Court’s Order. 28 U.S.C.

§ 636(b)(1); Snyder v. Ridenour, 889

F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,94(4th Cir.
1984). Pro so filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kemner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&Rwere due within fourteen (14)
days of receipt, pursuant to 28 U.S.C.

§ 636(b)(1) and Rule 72(b)(2) of the Federal Rules

of Civil Procedure. The petitioner timely filed his Objections to the R&R [Doc. 7] on August
17, 2020. Accordingly, this Court will review the portions of the R&R to which objection

3

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 4 of 6 PageID #: 78

was filed under a do novo standard of review. The remainder of the R&R will be reviewed
for clear error.
Ill. DISCUSSION

Generally, 28 U.S.C.

§ 2255 provides the exclusive means fora prisoner in federal

custody to test the legality of his detention. However,

§ 2255(e) contains a savings clause,

which allows a district court to consider a habeas petition brought by a federal prisoner
under

§ 2241 where § 2255 is “inadequate or ineffective to test the legality” of the

detention. 28 U.S.C.

§ 2255; see also United States v. Poole, 531 F.3d 263, 270(4th Cir.

2008). The fact that relief under § 2255 is procedurally barred does not render the remedy
inadequate or ineffective to test the legality of a prisoner’s detention. In re Jones, 226
F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a

§ 2255 petition is only inadequate

or ineffective to test the legality of detention when:
(1) [Alt the time of conviction, settled law in this circuit orthe 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 gatekeeping provision of

§ 2255 because the new rule is not one of constitutional law.
Poole, 531 F.3d at 269 (quoting In re Jones, 226 F.3d at 333—34).
Here, the magistrate judge found that petitioner is not entitled to application of the
savings clause because he misconstrues the import of Davis and Simms. [Doc. 5 at 8].

4

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 5 of 6 PageID #: 79

Accordingly, because the

§ 2241

petition is unable to satisfy the savings clause of 2255,

this Court must dismiss the habeas motion for lack of jurisdiction. [Id. at 11].
On August 17, 2020, petitioner filed his objections [Doc. 7]. Most of the document
merely reiterates the arguments already asserted in the petition and asserts that this Court
has jurisdiction over the petition. Petitioner makes four (4) objections with regard to the
execution of his sentence. First, petitioner argues that his challenge to the execution of
his sentence satisfies the savings clause and this Court does have jurisdiction to entertain
petitioner’s 28 U.S.C.

§ 2241

petition.” [Doc. 7 at 3]. Petitioner relies on In re Jones and

Wheelerto argue that he is “challenging the EXECUTION of his sentence and not the
validity of his conviction or sentence

[Id.].

second, petitioner states that he

disagrees with Magistrate Judge Mazzone’s finding that “the ‘concurrent sentence’ doctrine
cannot be used to avoid appellate review of each count of conviction.” [Id.]. Petitioner
states that he is not challenging the validity of his conviction nor the validity of his sentence
but is challenging the execution of his sentence, i.e., the concurrent sentence. [Id.]. Third,
petitioner objects to Magistrate Judge Mazzone’s ruling that “to the extent that the
petitioner may be alleging that his $100 special assessment for each of his 25 counts of
convictions is a violation of double jeopardy, the same is again without merit.”
[Doc. 5 at 10].

Petitioner again states that he is challenging the “execution of [his]

sentence in a manner contrary to law and not the legality of [the] sentence.”
[Doc. 7 atE, 6]. Fourth, petitioner states that he is not challenging the statutorily mandated
special assessments but is challenging the execution of his concurrent sentence. [Id. at 6].
He states that if his challenge is successful, he “may be entitled to a vacatur of the
corresponding sentences as well as the statutory mandated special assessments relating
5

Case 5:20-cv-00121-JPB Document 8 Filed 08/25/20 Page 6 of 6 PageID #: 80

to these convictions.” [Id.]. As noted above, this Court must construe pro so filings
liberally. Haines v. Kerner, 404 U.S. 520 (1972). However, it is the petitioner who bears
the burden of establishing that a

§

2255 motion is inadequate or ineffective and that he

satisfies the savings clause requirements. See Hood v. United States, 13 Fed. App’x. 72
(4th Cir. 2001). Petitioner does not satisfy the savings clause of

§

2255(e) because he

does not challenge that the crimes for which he was convicted remain criminal offenses.
Accordingly, petitioner cannot meet the second prong of Jones and his objections are
overruled.
IV. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 5] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, the petitioner’s
objections [Doc. 7] are OVERRULED. This Court ORDERS that the
[Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE.

§

2241 petition

This Court further

DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case
from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro so petitioner.
DATED: August 25, 2020

UNI

6

BAILEY
TES DISTRICT