Opinion
CR No. 0:06-488-JFA-BM.
May 11, 2006
ORDER DISMISSING PETITION
This matter is before the court for review of the Magistrate Judge's Report and Recommendation ("RR") made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2) (D.S.C.). The Magistrate Judge makes only a recommendation to the court, to which any party may file written objections. . . . The court is not bound by the recommendation of the Magistrate Judge but, instead, retains responsibility for the final determination. The court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the court is not required to review, under a de novo or any other standard, the factual Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the court's review of the Report thus depends on whether or not objections have been filed, in either case, the court is free, after review, to accept, reject, or modify any of the Magistrate Judge's findings or recommendations. Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations omitted).
The pro se petitioner in this action is a federal inmate at the Federal Correctional Institute in Estill, South Carolina. He is currently serving a 200 month sentence in this district that was imposed by the undersigned on December 11, 1992. He did not file a direct appeal of his conviction. Mr. Schepis has filed numerous unsuccessful motions to vacate his sentence pursuant to § 2255 and § 2241 which the Magistrate Judge has noted in his Report and Recommendation.
The present petition is styled as one brought pursuant to 28 U.S.C. § 2241. The petitioner seeks to raise several issues that clearly challenge the underlying validity of his conviction and sentence. Specifically, he contends that the court imposed a sentence exceeding the maximum allowed based on the court's enhanced sentence after its finding that Schepis was an armed career criminal.
The Magistrate Judge to whom this matter was referred has filed a detailed and comprehensive Report and Recommendation, suggesting that this action be dismissed without prejudice because the claims brought are not proper under § 2241 and that the petition should be treated as one brought pursuant to 28 U.S.C. § 2255. The Magistrate Judge reasons that because the petitioner has not sought and received permission from the Fourth Circuit Court of Appeals to file a second, successive Section 2255 petition, that this action should be dismissed without prejudice.
The petitioner was advised of his right to file objections to the Report and Recommendation and he has done so in a ten-page objection memorandum filed with the Clerk on March 30, 2006. The court has conducted the required de novo review and finds no basis for disturbing the Magistrate Judge's recommended disposition.
Accordingly, the Report and Recommendation is incorporated herein by reference, the objections are overruled, and this action is dismissed without prejudice and without requiring the respondents to file a return.
IT IS SO ORDERED.