Opinion
CIVIL ACTION NO. 3:13-CV-67
2013-09-23
GEORGE WILLIE BUFORD III, Petitioner, v. TERRY O'BRIEN, Respondent.
(JUDGE GROH)
ORDER ADOPTING REPORT AND RECOMMENDATION ON PETITIONER'S
28 U.S.C. § 2241 PETITION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge David J. Joel [Doc. 14], filed on August 6, 2013, to which neither party filed objections. Pursuant to 28 U.S.C. § 636(b)(1)(c), the Court is required to review de novo those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the petitioner's right to appeal the Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Objections to Magistrate Judge Joel's Report and Recommendation were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). Petitioner accepted service of the Report and Recommendation on August 9, 2013. [Doc. 15]. Petitioner did not file any objections. Accordingly, this Court reviews the report and recommendation for clear error.
In this case, the pro se petitioner filed an Application for Habeas Corpus pursuant to 28 U.S.C. § 2241 attempting to attack the validity of his conviction. However, a petition pursuant to 28 U.S.C. § 2241 attacks the manner in which the sentence is executed while a petition pursuant to 28 U.S.C. § 2255 attacks the validity of a federal conviction and sentence. Therefore, Petitioner's 28 U.S.C. § 2241 petition is barred unless it meets the savings clause. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (listing three requirements that must be met in order for the "savings clause" to apply). However, the magistrate judge found that Petitioner did not establish that his § 2241 petition met the Jones requirements. Accordingly, the magistrate judge recommended that this court deny Petitioner's petition with prejudice.
Upon review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 14] should be, and is, hereby ORDERED ADOPTED. For the reasons more fully stated in the Report and Recommendation, this Court ORDERS that Petitioner's 28 U.S.C. § 2241 petition be DISMISSED WITH PREJUDICE and that it be STRICKEN FROM THE DOCKET OF THIS COURT. The Clerk is DIRECTED to enter judgment in favor of the Respondent.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.
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GINA M. GROH
UNITED STATES DISTRICT JUDGE