Opinion
5:24-cv-115-TES-CHW
04-17-2024
SALEEBAN ISSE ADAN, Petitioner, v. JOHN OR JANE DOE, Respondent.
Proceedings Under 28 U.S.C. § 2255
Before the U.S. Magistrate Judge
RECOMMENDATION TO DISMISS
Charles H. Weigle, United States Magistrate Judge
Before the Court is a Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed by Saleeban Isse Adan. (Doc. 1). After an initial review in accordance with the provisions of Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the instant Motion is subject to summary dismissal because 28 U.S.C. § 2255 applies to persons under a federal sentence, whereas the petition shows that Adan is in custody under a state sentence. (Doc. 1); 28 U.S.C. § 2255(a) (applying the statute to a “prisoner in custody under sentence of a court established by Act of Congress...”). Because Adan is not subject to a federal sentence, it is RECOMMENDED that the petition (Doc. 1) be DISMISSED.
The Eleventh Circuit has advised courts to look beyond how a document is labeled and to construe a pro se petition most favorably to the pro se litigant in order to avoid any prejudice. See, e.g., Retic v. U.S., 215 Fed.Appx. 962 (11th Cir. 2007). Adan would not be prejudiced by this dismissal because he has an open pending Section 2254 action in this Court, Adan v. American White Government, 3:24-cv-8-CDL-CHW. Therefore, the Court need not construe Adan's petition as a habeas petition under 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. §636(b)(1), the parties may serve and file written objections to these recommendations with the United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this recommendation. The parties may seek an extension of time to file objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED.