IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling BRIAN D. ABERNATHY, Petitioner, v. Criminal Action No. 5:20-CV-194 Judge Bailey ROBERT HUDGINS, 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. 6]. Pursuant to this Court’s 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 September 16, 2020, wherein he recommends the petition be denied and dismissed without prejudice. I. BACKGROUND The petitioner is a federal inmate incarcerated at FCI Gilmer in Glenville, West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on September 8, 2020, pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence. On March 31, 2016, petitioner was sentenced to 151 months’ imprisonment after pleading guilty to seven counts of the Indictment.1 According to the BOP website, petitioner is scheduled to
1Taken from Abernathy’s criminal docket from the Northern District of Ohio, available on PACER. See United States v. Abernathy, 1:15-CR-00345-PAG-1. 1 be released on March 5, 2027. In his petition, Abernathy contends that he is actually innocent of being a career offender because his predicate offenses were under Ohio Revised Code § 29253.03 which “does not fit the criteria for career offender status” following United States v. Rogerson- Wise, Case No. 18-3625 (6th Cir., Oct. 30, 2019). [Doc. 1-1 at 9]. Abernathy argues that but-for his career offender designation, his Guideline Range for sentencing would have been considerably lower. For relief, he asks to be resentenced. II. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de 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. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de 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 de 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 se 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. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 2 F.2d 1147, 1151 (4th Cir. 1971). Here, objections to Magistrate Judge Mazzone’s R&R were 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. Petitioner timely filed his Objections [Doc. 8] on September 25, 2020. Accordingly, this Court will review the portions of the R&R to which objection was filed
under a de novo standard of review. The remainder of the R&R will be reviewed for clear error. III. DISCUSSION Generally, 28 U.S.C. § 2255 provides the exclusive means for a 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) [A]t the time of conviction, settled law in this circuit or 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 gatekeeping provision of
3 § 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). The Fourth Circuit recently found that the savings clause may apply to certain sentencing challenges. It explained:
[W]e conclude that § 2255 is inadequate and ineffective to test the legality of a sentence when: (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. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Because the requirements
of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet either the Jones test (if challenging the legality of his conviction) or the Wheeler test (if challenging the legality of his sentence) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner’s claims. See Wheeler, 886 F.3d at 423–26. Here, the Magistrate Judge found that Abernathy is challenging his sentence, but he cannot meet the four-prongs of Wheeler. [Doc. 6 at 6]. Specifically, the Magistrate Judge found that even if he could meet the first, second, and third prongs of Wheeler, he
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling BRIAN D. ABERNATHY, Petitioner, v. Criminal Action No. 5:20-CV-194 Judge Bailey ROBERT HUDGINS, 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. 6]. Pursuant to this Court’s 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 September 16, 2020, wherein he recommends the petition be denied and dismissed without prejudice. I. BACKGROUND The petitioner is a federal inmate incarcerated at FCI Gilmer in Glenville, West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on September 8, 2020, pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence. On March 31, 2016, petitioner was sentenced to 151 months’ imprisonment after pleading guilty to seven counts of the Indictment.1 According to the BOP website, petitioner is scheduled to
1Taken from Abernathy’s criminal docket from the Northern District of Ohio, available on PACER. See United States v. Abernathy, 1:15-CR-00345-PAG-1. 1 be released on March 5, 2027. In his petition, Abernathy contends that he is actually innocent of being a career offender because his predicate offenses were under Ohio Revised Code § 29253.03 which “does not fit the criteria for career offender status” following United States v. Rogerson- Wise, Case No. 18-3625 (6th Cir., Oct. 30, 2019). [Doc. 1-1 at 9]. Abernathy argues that but-for his career offender designation, his Guideline Range for sentencing would have been considerably lower. For relief, he asks to be resentenced. II. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de 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. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de 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 de 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 se 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. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 2 F.2d 1147, 1151 (4th Cir. 1971). Here, objections to Magistrate Judge Mazzone’s R&R were 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. Petitioner timely filed his Objections [Doc. 8] on September 25, 2020. Accordingly, this Court will review the portions of the R&R to which objection was filed
under a de novo standard of review. The remainder of the R&R will be reviewed for clear error. III. DISCUSSION Generally, 28 U.S.C. § 2255 provides the exclusive means for a 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) [A]t the time of conviction, settled law in this circuit or 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 gatekeeping provision of
3 § 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). The Fourth Circuit recently found that the savings clause may apply to certain sentencing challenges. It explained:
[W]e conclude that § 2255 is inadequate and ineffective to test the legality of a sentence when: (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. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Because the requirements
of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet either the Jones test (if challenging the legality of his conviction) or the Wheeler test (if challenging the legality of his sentence) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner’s claims. See Wheeler, 886 F.3d at 423–26. Here, the Magistrate Judge found that Abernathy is challenging his sentence, but he cannot meet the four-prongs of Wheeler. [Doc. 6 at 6]. Specifically, the Magistrate Judge found that even if he could meet the first, second, and third prongs of Wheeler, he
4 cannot meet the fourth, which requires that due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be deemed a fundamental defect. [Id. at 7]. The Magistrate Judge found that because the petitioner was sentenced under the post-Booker, purely advisory Guidelines, regardless of whether there was a
misapplication of the Guidelines, he cannot satisfy the fourth prong of Wheeler. [Id. at 8] (citing Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018)). On September 25, 2020, petitioner filed his objections to the R&R. [Doc. 8]. Therein, petitioner asserts that the Magistrate Judge’s finding that the fourth prong of Wheeler is not satisfied, regardless of whether there was a misapplication of the Sentencing Guidelines, was in error. [Id. at 2]. He cites Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011) for the proposition that the Sentencing Guidelines do not extend or apply to career offender enhancements. [Id. at 5]. This Court does not find petitioner’s objection persuasive and, upon de novo review,
find that the Magistrate Judge reached the correct conclusion. Fourth Circuit precedent clearly establishes that a misclassification as a career offender is not a fundamental defect. See United States v. Foote, 784 F.3d 931, 940 (4th Cir. 2015). Petitioner’s reliance on Narvaez is likewise misplaced; even if Narvaez stood for the position Abernathy claims, the petitioner in that case was sentenced pre-Booker under mandatory Sentencing Guidelines. Because Abernathy cannot meet the fourth prong of Wheeler, he is unable to satisfy the savings clause of § 2255, this Court lacks jurisdiction to consider his petition. IV. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and 5 Recommendation [Doc. 6] 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. 6] are OVERRULED and the § 2241 petition [Doc. 1] is DENIED and DISMISSED WITHOUT PREJUDICE. The Motion for Leave to Proceed in forma pauperis [Doc. 2] is hereby DENIED and the fee waived. 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 se petitioner. DATED: October 23, 2020.
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