Opinion
Civil Action No. 3:04-0100-HFF-JRM.
January 10, 2006
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND DISMISSING THE ACTION WITHOUT PREJUDICE AND WITHOUT SERVICE ON RESPONDENTS
This case was filed as a Section 2241 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that the Court dismiss the petition for a writ of habeas corpus without prejudice and without service on Respondents.
II. STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Matthews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made; and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on May 4, 2004, and Petitioner filed his objections to the Report on May 21, 2004. Petitioner also filed amended objections on June 3, 2004.
III. PETITIONER'S OBJECTIONS
A. Review of Fourth Circuit Court of Appeals
Two of Petitioner's objections concern decisions rendered by the Court of Appeals for the Fourth Circuit. Simply stated, and as observed by the Magistrate Judge, it is not the province of this Court "to review a decision of the court of appeals of its circuit . . . to ascertain if error exists, or to correct any error. In such a case, a petitioner must address a request for relief to the court of appeals or the Supreme Court." Report at 5. Accordingly, these objections will be overruled.
B. 21 U.S.C. § 841.
Petitioner next argues that the trial court erred in its interpretation and application of 21 U.S.C. § 841. For the reasons set forth in the Report, however, this Court finds that Petitioner's claim is inappropriate. Thus, the Court will enter judgment accordingly.
C. Other objections
To the extent that Petitioner makes United States v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004) type arguments, those objections will be overruled. The rule set forth in those cases is unavailable for post-conviction relief for federal prisoners, like Petitioner, whose convictions became final before Booker or Blakely was decided.
IV. CONCLUSION
After a thorough review of the Report and the record in this case pursuant to the standards set forth above, the Court overrules Petitioner's objections, adopts the Report, and incorporates it herein. Accordingly, it is the judgment of this Court that the petition must be DISMISSED without prejudice and without service upon Respondents.
IT IS SO ORDERED.