Benjamin Tillman v. Barbara Rickard ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6463
BENJAMIN TILLMAN,
Petitioner - Appellant,
v.
BARBARA RICKARD, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern District of West Virginia, at
Bluefield. David A. Faber, Senior District Judge. (1:18-cv-01244)
Submitted: July 21, 2020 Decided: July 24, 2020
Before AGEE, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin Tillman, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
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 (1985). In the absence of such specific objections, we hold that Tillman has
waived appellate review of the Wheeler issues.
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Accordingly, we affirm the district court’s order for the reasons stated therein.
Tillman v. Rickard, No. 1:18-cv-01244 (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
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