The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JESSE T. GILMORE,
Petitioner,
v. Civil Action No. 5:18CV90
(STAMP)
JENNIFER SAAD, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I. Procedural History
The pro se1 petitioner, Jesse T. Gilmore, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
The petitioner was then incarcerated at FCI Gilmer in Glenville,
West Virginia. In his petition, petitioner alleges that due to a
“Subsequent, Retroactive change in the Statutory interpretation by
the United States Supreme Court in Mathis v. United States, 136 S.
Ct. 2243 (2016)[,]” his Commonwealth of Virginia drug conviction
fails to categorically qualify as a “federally Controlled Substance
element that is included within the felony drug offense definition
Set forth in 21 U.S.C. § 802(44), under the Statutory enhancement
Provision of 21 U.S.C. § 851, § 841(b).” ECF No. 8-1 at 1-2
(internal quotation marks omitted); ECF No. 1-1 at 1-2.
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).
Specifically, the petitioner requests that “this Court Vacate his
Sentence and Order An immediate Release[.]” ECF No. 8-1 at 1; ECF
No. 1-1 at 1.
This civil action was referred to United States Magistrate
Judge James P. Mazzone under Local Rule of Prisoner Litigation
Procedure 2. Magistrate Judge Mazzone issued a report and
recommendation (ECF No. 20) 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).
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III. Discussion
In his report and recommendation, the magistrate judge
correctly noted that the petitioner has not met the second prong
under the Wheeler2 test — that the “settled substantive law [that
established the legality of his sentence] changed and was deemed to
apply retroactively on collateral review.” ECF No. 20 at 7. The
magistrate judge cited several cases within the United States Court
of Appeals for the Fourth Circuit and elsewhere that have held that
Mathis does not represent a substantive change in the law. Id. at
7-8. Upon review, the magistrate judge, concluded that this Court
does not have jurisdiction to consider the petition. Id. at 8-9.
Thus, the magistrate judge recommended that the petitioner’s
petition (ECF No. 1) be denied and dismissed without prejudice.
Id.
Upon review, this Court finds no clear error in the
determinations of the magistrate judge and thus upholds his
recommendation.
IV. Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 20) 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.
2United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
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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: July 30, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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