Opinion
Case No. ED CV 18-1087-JVS (SP)
03-15-2019
JUSTIN KIRK GRAVES, Petitioner, v. DAVID SHINN, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, WITH MODIFICATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which petitioner has objected. The Court accepts the findings and recommendations of the Magistrate Judge, except as follows.
The Report and Recommendation recommends the Petition be recharacterized as a 28 U.S.C. § 2255 motion and transferred to the United States District Court for the Northern District of Texas. The Magistrate Judge reasoned that although it appears any § 2255 motion would be time-barred, petitioner's Reply suggested he may seek a time waiver from the government; thus, the interest of justice weighed in favor of transfer.
In petitioner's objections, however, petitioner states the government has not indicated its willingness to waive the timeliness bar, so a transfer to the Northern District of Texas would be futile. Petitioner requests that, if the Court will not allow him to proceed with his Petition under 28 U.S.C. § 2255(e)'s saving clause, the court deny the Petition so he can pursue his claim on appeal. In light of these representations in the objections, the interest of justice no longer weighs in favor of transfer of the untimely § 2255 motion. But this Court continues to lack jurisdiction for the reasons stated in the Report and Recommendation.
IT IS THEREFORE ORDERED that respondent's Motion to Dismiss or Transfer (docket no. 13) is granted, and Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: March 15, 2019
/s/_________
HONORABLE JAMES V. SELNA
UNITED STATES DISTRICT JUDGE