BIAS v. U.S.

Full title: RANDALL BIAS, Petitioner, v. UNITED STATES OF AMERICA, et al., Respondents

Court: United States District Court, W.D. Oklahoma

Date published: Jul 7, 2006

No. CIV-06-248-R (W.D. Okla. Jul. 7, 2006)

Opinion

No. CIV-06-248-R.

July 7, 2006

ORDER

DAVID RUSSELL, District Judge

Before the Court are the Report and Recommendation of United States Magistrate Judge Gary M. Purcell entered March 31, 2006 and "Petitioner's Motion to Object to the Report and Recommendation of the Magistrate Court" filed May 18, 2006.

Petitioner does not object to the Magistrate Judge's recommendation that grounds one, two, three and five in Petitioner's 28 U.S.C. § 2241 be dismissed without prejudice for lack of jurisdiction; indeed, Petitioner moves for dismissal of those grounds for relief. Petitioner, however, makes a lengthy argument in support of his objection to the Magistrate Judge's recommendation that the fourth ground of the petition be dismissed with prejudice. Petitioner's argument is directed to the merits of his claim that he should receive credit on his federal sentence for time served from March 20, 1998 to the date Petitioner began serving his federal sentence, April 27, 2000. However, the Magistrate Judge recommended that this claim or ground for relief be dismissed as successive because a federal court had previously adjudicated this claim in § 2255 proceedings, at Petitioner's insistence. The Magistrate Judge was correct. See 28 U.S.C. § 2244(a); George v. Perrill, 62 F.3d 333, 334 (10^th Cir. 1995); Ackerman v. Zenon, 150 Fed. Appx. 772 (10^th Cir. Sept. 30, 2005) (No. 05-1167); Verner v. Attorney General, 2006 WL 1775752 (10^th Cir. June 29, 2006) (No. 06-1063); Rhodes v. True, 131 F.3d 152, 1997 WL 755387 (10^th Cir. Dec. 8, 1997) (No. 97-3191). Inasmuch as Petitioner pleaded guilty, he cannot now claim that he is factually innocent, see Ackerman v. Zenon, supra, at 774, so he cannot show that a fundamental miscarriage of justice would occur if his claim is not reviewed.

In accordance with the foregoing, Petitioner's Objection is without merit, the Report and Recommendation of the Magistrate Judge is ADOPTED in its entirety and the first, second, third and fifth grounds for relief in the 28 U.S.C. § 2241 petition for a writ of habeas corpus herein are DISMISSED without prejudice for lack of jurisdiction and the fourth ground for relief, which is successive, is DISMISSED with prejudice.

It is so ordered.