Fry v. Entzel

• Court: District Court, N.D. West Virginia
• Decided: July 2, 2021
• Docket: 1:18-cv-00165
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLARKSBURG

LAWRENCE FRY, JR.,

Petitioner,

v. Civil Action No. 1:18-cv-165 (Judge Kleeh)

FREDERICK ENTZEL,

Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 9] AND DISMISSING THE PETITION AS MOOT [DKT. NO. 1]

On August 23, 2018, the pro se Petitioner, Lawrence Fry, Jr. (“Petitioner”), an inmate at FCI Hazelton in Bruceton Mills, West Virginia, filed a petition in this action pursuant to 28 U.S.C. § 2241 [Dkt. No. 1] arguing that his prior convictions do not qualify as controlled substance predicate offenses for a career offender enhancement to have applied to his sentencing. Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred the action to United States Magistrate Judge Michael J. Aloi for initial review. On May 19, 2021, the Magistrate Judge entered a Report and Recommendation (“R&R”), recommending that the petition be denied and dismissed with prejudice due to a lack of subject matter jurisdiction [Dkt. No. 9 at 10]. The R&R also informed the parties that they “shall have fourteen (14) days from the date of service of this Report and ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 9]

Recommendation” within which to file “specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection” [Dkt. No. 9 at 10]. It further warned that the “[f]ailure to file written objections . . . shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals” [Id. at 11]. The docket reflects that service of the R&R was accepted May 24, 2021 [Dkt. No. 10]. To date, no objections have been filed. When reviewing a magistrate judge’s R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt, without explanation, any of the magistrate judge’s recommendations” to which there are no objections. Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial

Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Because no party has objected, the Court is under no obligation to conduct a de novo review. Accordingly, the Court reviewed the R&R for clear error. This Court agrees that the petition should be denied and dismissed based on a lack of subject ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 9]

matter jurisdiction. Petitioner cannot satisfy the § 2555(e) savings clause which is necessary for the Court to have subject matter jurisdiction to evaluate the merits of Petitioner’s claims brought in a § 2241 petition. Accordingly, upon careful review, and finding no clear error, the Court ADOPTS the R&R [Dkt. No. 9]. The § 2241 Petition [Dkt. No. 1] is DENIED and DISMISSED WITH PREJUDICE. The Court further ORDERS that this matter be STRICKEN from the Court’s active docket and DIRECTS the Clerk to enter judgment in favor of Respondent. It is so ORDERED. The Clerk is directed to transmit copies of this Order to the pro se Petitioner via certified mail, return receipt requested. DATED: July 2, 2021

__/s/ Thomas S. Kleeh___________ THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE