Opinion
Civil No. 18-502 (DWF/HB)
05-31-2018
James Thornberg, Petitioner, v. United States of America, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court upon Petitioner James Thornberg's ("Thornberg" or "Petitioner") pro se objections (Doc. No. 9) to Magistrate Judge Franklin L. Noel's May 7, 2018 Report and Recommendation (Doc. No. 8) insofar as it recommends that: (1) this matter be dismissed without prejudice for lack of jurisdiction; and (2) Petitioner's motion for service and response be denied.
The factual background for the above-entitled matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference for purposes of Thornberg's objections. In the Report and Recommendation, the Magistrate Judge concluded that it lacked jurisdiction over Thornberg's petition. Specifically, the Magistrate Judge explained that Thornberg's petition is a direct challenge to his conviction and that such challenges must generally be raised under § 2255, not § 2241. The Magistrate Judge further noted that the Court cannot reinterpret Thornberg's petition under § 2255 because Thornberg previously sought relief under § 2255. Finally, the Magistrate Judge concluded that Thornberg is unable to show that § 2255 is either inadequate or insufficient. In his objection, Thornberg argues that error were made by the trial court that permeated the entire process. However, the arguments made in that regard were or could have been presented on direct appeal.
The Court has conducted a de novo review of the record, including a review of the arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b). After this review, the Court finds no reason that would warrant a departure from the Magistrate Judge's recommendations. Based upon the de novo review of the record and all of the arguments and submissions of the parties and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1. Petitioner James Thornberg's pro se objections (Doc. No. [9]) to Magistrate Judge Franklin L. Noel's May 7, 2018 Report and Recommendation are OVERRULED.
2. Magistrate Judge Franklin L. Noel's May 7, 2018 Report and Recommendation (Doc. No. [8]) is ADOPTED.
3. This matter is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
4. Plaintiff James Thornberg's motion for service and response (Doc. No. [4]) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: May 31, 2018
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge