IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELKINS ISMALIUS J. WHITE, Petitioner, v. CIVIL ACTION NO. 2:18-CV-76 (BAILEY) JENNIFER SAAD, 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. 20]. 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 July 2, 2019, wherein he recommends the § 2241 petition be denied and dismissed without prejudice. I. BACKGROUND The petitioner is a federal inmate incarcerated at FCI Gilmer in the Norther District of West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on August 3, 2018, pursuant to

, challenging the validity of his sentence. On March 2, 2009, petitioner was sentenced to 420 months imprisonment for violation of

, conspiracy to distribute and possess with the intent to distribute more than

50 grams of cocaine base (crack).' According to the BOP website, petitioner is scheduled to be released on June 12, 2034. In his memorandum of law in support of his § 2241 petition, petitioner argues, first, that his sentence was improperly calculated with a gun enhancement, because petitioner was not charged with a crime relating to gun possession. [Doc. 1-1 at 5]. Second, petitioner argues his sentence was improperly enhanced because of a bogus Leadership Role. /d. Finally, petitioner contends that his sentence should be vacated because a conspiracy cannot exist with one person. /d. ll. STANDARD OF REVIEW Pursuant to

(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 te which no objections are addressed. Thomas v. Arn,

(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,

(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.

(b)(1); Snyder v. Ridenour,

(4th Cir. 1989); United States v. Schronce,

(4th Cir.

‘Taken from White's criminal docket from the Eastern District of North Carolina, available on PACER. See United States v. White, 4:06-cr-68-1-FL, Doc. 157.

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,

(1972); Gordon v. Leeke,

(4th Cir. 1971). Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14) days of receipt, pursuant to

(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, On July 18, 2019, the petitioner filed a motion for extension of time [Doc. 22]. This Court granted the motion and extended the deadline to file objections to September 5, 2019 [Doc. 23]. The petitioner timely filed his Objections to the Magistrate Judge's Report and Recommendation [Doc. 25] on September 3, 2019. 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. Ill. DISCUSSION Generally,

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.

; see also United States v. Poole,

(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,

, 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 § 2255 because the new rule is not one of constitutional law.

Poole,

(quoting /n 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: [We 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,

(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,

. Here, the magistrate judge found that because petitioner “cannot satisfy the savings clause of § 2255(e) under either Jones or Wheeler, his claim may not be considered under § 2241, and this Court is without jurisdiction to consider his petition.” [Doc. 20 at 9]. In his objections to the R&R [Doc. 25], the petitioner raises two arguments. First, the

petitioner argues that the Magistrate Judge erred in his analysis of Jones. The petitioner asserts that “[pJetitioner’s sentence was enhanced illegally.” [Doc. 25 at 2]. Because this is a challenge to the legality of his sentence rather than his conviction, it is inapplicable to the magistrate judge's analysis of Jones. Accordingly, this objection is overruled. Second, the petitioner argues that the Magistrate Judge erred in his analysis of Wheeler. The Magistrate Judge found that, “even if White meets the first, second, and third prongs of Wheeler, he cannot meet the fourth prong, which requires a showing that due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be deemed a fundamental defect.” [Doc. 20 at 8]{citation omitted). The Magistrate Judge found that even if there was a misapplication of the sentencing guidelines in sentencing the petitioner, this would not satisfy the fourth prong of Wheeler. In his objections, the petitioner asserts that because of a change in the guidelines following the Fair Sentencing Act of 2010, his sentence under the updated guidelines would have been significantly (190 months) shorter. [Doc. 25 at 4]. The petitioner contends that this “significant reduction” qualifies as a fundamental defect. /d. In short, this objection fails for the reasons already put forth by the Magistrate Judge. The only basis the petitioner puts forth for a fundamental error is the potential misapplication of the sentencing guidelines. As the Magistrate Judge already noted, because petitioner was sentenced under the post-Booker, advisory guidelines, “the law in this Circuit makes clear that he cannot satisfy the fourth Wheeler prong.” [Doc. 20 at □□□ See Lester v. Flournoy,

(4th Cir. 2018). The mere fact that the petitioner contends he should have received a significantly shorter sentence does not

amount to a fundamental error. As already cited in the R&R, “§ 2255 does not allow for a court’s consideration and correction of every alleged sentencing error.” United States v. Foote,

(4th Cir. 2015). Accordingly, this objection is overruled. IV. CONCLUSION Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 20) should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court ORDERS that the § 2241 petition [Doc. 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. As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability, finding that the petitioner has failed to make “a substantial showing of the denial of a constitutional right.”

(c)(2). Itis 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: September !G, 2019. SLES hse UNITED STATES DISTRICT JUDGE