Opinion
CIVIL ACTION NO.: CV211-088.
August 8, 2011
ORDER
After an independent and de novo review of the entire record, the undersigned concurs with the Magistrate Judge's Report and Recommendation, to which Objections have been filed. In his Objections, Petitioner Jonathan Hans ("Hans") contends that he was detained in the Volunteers of America facility and subjected to "jail like" conditions prior to his sentencing. (Doc. No. 9, p. 2). Hans also contends that his assertion that his right to due process was violated was not addressed.
In his petition, Hans asserts that his right to due process was violated because he was not informed that the time he spent in the Volunteers of America facility prior to sentencing would not be credited against his sentence. However, as part of Hans' conditions of pre-trial release, he was to reside at Volunteers of America on lockdown status. Hans initialed this condition as part of his pretrial release (Doc. No. 6-1, p. 14), and the Order Setting Conditions of Release differentiates between a defendant being released or being kept in the custody of the United States Marshals Service. (Id. at p. 15) (emphases added). Thus, Hans received notice of being released to Volunteers of America on lockdown status as part of his pretrial release.
In addition, the undersigned notes that Hans has filed a 28 U.S.C. § 2255 motion alleging that his attorney provided ineffective assistance by failing to notify him that he would not receive credit for his time spent at the Volunteers of America facility prior to sentencing. This motion is pending in the Southern District of Indiana. (1:11-cv-00700-WTL-TAB, S.D. Ind.). This course appears to be the proper avenue for Hans to pursue this claim.
Hans' Objections are overruled. The Magistrate Judge's Report and Recommendation, as supplemented herein, is adopted as the opinion of the Court. Hans' petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is DENIED. The Clerk of Court is authorized to enter the appropriate judgment of dismissal.
SO ORDERED, this 5 day of August, 2011.