TILLMAN v. RICKARD (2020)

Benjamin Tillman, a federal prisoner, appeals the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2018) petition in which Tillman sought to challenge his conviction and sentence by way of the savings clause in 28 U.S.C. § 2255 (2018). Pursuant to § 2255(e), a prisoner may challenge his conviction and sentence in a traditional writ of habeas corpus under § 2241 if a § 2255 motion would be inadequate or ineffective to test the legality of his detention. Here, the district court correctly determined that Tillman may not challenge the validity of his conviction through a § 2241 petition because the conduct for which he was convicted—conspiracy to possess with intent to distribute cocaine base—remains criminal. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).

To the extent that Tillman also sought to rely on United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), to challenge his 480-month sentence, the district court properly concluded that Tillman failed to specifically object to those aspects of the magistrate judge's report relevant to Wheeler’s applicability in this case. The timely filing of specific objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In the absence of such specific objections, we hold that Tillman has waived appellate review of the Wheeler issues.

Accordingly, we affirm the district court's order for the reasons stated therein. Tillman v. Rickard, No. 1:18-cv-01244, 2020 WL 1548057 (S.D.W. Va. Mar. 31, 2020). While we deny Tillman's motions for the appointment of counsel and for bail pending appeal, we grant his motions to proceed in forma pauperis, for judicial notice of various cited cases, and for consideration of a motion Tillman erroneously filed in a different appeal that has since been dismissed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.