The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TOMMY HAUBRICH,
Petitioner,
v. Civil Action No. 5:18CV139
(STAMP)
FREDERICK ENTZEL,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I. Procedural History
The pro se1 petitioner, Tommy Haubrich, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
The petitioner is currently incarcerated at FCI Hazelton in
Bruceton Mills, West Virginia. In his petition, petitioner
challenges his sentence asserting that his sentence as a career
criminal is no longer valid. ECF No. 1. For relief, the
petitioner requests this Court vacate his sentence and/or
conviction.
This civil action was referred to United States Magistrate
Judge James E. Seibert under Local Rule of Prisoner Litigation
Procedure 2, and then reassigned to United States Magistrate Judge
James P. Mazzone. Magistrate Judge James P. Mazzone issued a
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).
report and recommendation (ECF No. 7) recommending that the
petitioner’s petition (ECF No. 1) be denied and dismissed without
prejudice. The petitioner did not file objections to the report
and recommendation. For the following reasons, this Court affirms
and adopts the report and recommendation in its entirety.
II. Applicable Law
Pursuant to 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. As to findings
where no objections were made, such findings and recommendations
will be upheld unless they are “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A). Because the petitioner did not
file any objections to the 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).
III. Discussion
In his report and recommendation, the magistrate judge
correctly noted that in the instant case, although petitioner
asserts that he is entitled to relief under the savings clause, it
is clear that he is not entitled to its application. ECF No. 7
at 8. Here, the petitioner’s claim attacks the validity of his
sentence, imposed by the Western District of Missouri, asserting
that under Mathis v. United States, 136 S. Ct. 2243 (2016), his
2
Pennsylvania conviction for aggravated assault does not
categorically qualify as a crime of violence and exceeds the scope
of the generic definition of aggravated assault. ECF No. 7 at 9.
However, as the magistrate judge correctly determined, to the
extent that the petitioner requests that the Court vacate his
conviction, it is clear that the crimes for which he was convicted
remain criminal offenses and, therefore, he cannot satisfy the
second element of the Jones2 test. ECF No. 7 at 8. Furthermore,
with respect to his sentence challenge, the magistrate judge
determined that even if the petitioner could satisfy the first and
third prongs of Wheeler3, he has not established that, after his
first § 2255 motion, the “settled substantive law [that established
the legality of his sentence] changed and was deemed to apply
retroactively on collateral review,” as required by the second
prong. Id. at 7-8. Upon review, the magistrate judge concluded
that the petitioner’s claim is not properly considered under
§ 2241. ECF No. 7 at 10. Thus, the magistrate judge recommended
that the petitioner’s petition (ECF No. 1) be denied and dismissed
without prejudice. ECF No. 7 at 10.
Upon review, this Court finds no clear error in the
determinations of the magistrate judge and thus upholds his
recommendation.
2In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
3United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018).
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IV. Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 7) is AFFIRMED and ADOPTED in its
entirety. Accordingly, the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (ECF No. 1) is DENIED and DISMISSED
WITHOUT PREJUDICE.
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 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 ORDERED that this civil action be DISMISSED and STRICKEN
from the active docket of this Court.
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
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED: May 7, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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