Opinion
Case No. CV 18-6603 MWF(JC)
03-13-2019
STEVEN FISHMAN, Petitioner, v. JEFF SESSIONS, Attorney General, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND RULING ON OBJECTIONS AND MOTIONS
Pursuant to 28 U.S.C. § 636, the Court has reviewed the "Petition for Writ of Habeas Corpus by a Person Detained in Federal Custody Pursuant to 28 U.S.C. § 2241 and Petition for Declaratory Judgment Pursuant to 28 U.S.C. § 2201" ("Petition" or "Petition/Section 2255 Motion"), the Motion to Dismiss the Petition ("Motion to Dismiss") and all supporting and opposing documents filed in connection therewith, petitioner's Motion to Strike, and all of the records herein, including the November 28, 2018 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), petitioner's objections to the Report and Recommendation ("Objections"), and petitioner's March 8, 2019 motion for an extraordinary writ in the nature of declaratory judgment pursuant to 28 U.S.C. § 1651 and 28 U.S.C. § 2201, et seq. ("March Motion"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.
IT IS HEREBY FURTHER ORDERED AND FOUND: (1) the Petition is construed to be a motion arising under 28 U.S.C. § 2255 ("Section 2255") because it effectively challenges petitioner's conviction and sentence in the Northern District of Oklahoma and petitioner fails to demonstrate that his remedy under Section 2255 is inadequate or ineffective to test the legality of his detention; (2) this Court lacks the requisite jurisdiction to entertain the Petition/Section 2255 Motion; (3) transferring the Petition/Section 2255 Motion to the Northern District of Oklahoma would be futile; (4) the Motion to Dismiss is granted; (5) the Petition/Section 2255 Motion and this action are dismissed without prejudice; (6) petitioner's Motion to Strike is denied; (7) the March Motion is denied; and (8) Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on petitioner and on counsel for respondent.
IT IS SO ORDERED.
DATED: March 13, 2019
/s/_________
HONORABLE MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE