Opinion
Civ. Action No. 1:17-CV-147
06-23-2020
KEVIN STEPHENS, Petitioner, v. S. KALLIS, Warden, Respondent.
(Kleeh)
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND DENYING AND DISMISSING PETITION [DKT. NO. 1]
On August 23, 2017, the pro se Petitioner, Kevin Stephens ("Stephens" or "Petitioner"), filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241. Petitioner, a federal inmate who was incarcerated at FCI Hazelton, challenges the validity of his sentence as imposed by the United States District Court for the Eastern District of Michigan [Dkt. No. 1]. Stephens specifically contests the application of the career offender guidelines to his sentence [Id..]. Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred the action to United States Magistrate Judge Michael J. Aloi for initial review.
Petitioner has since been transferred to FCI Yazoo City Medium, at Yazoo, Mississippi.
On June 3, 2020, Magistrate Judge Aloi entered a Report and Recommendation ("R&R"), recommending that the petition be denied and dismissed without prejudice [Dkt. No. 13 at 10]. The R&R also informed Petitioner that he had fourteen (14) days from the date of service of the R&R within which to file "specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection." [Id.]. It further warned Stephens that the "[f]ailure to file written objections . . . shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals." Id. The Petitioner was served with a copy of the R&R on June 8, 2020 [DKt. No. 14] but, to date, no objections have been filed.
When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, "the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the [parties do] not object." Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Because Petitioner has not objected to the R&R, the Court is under no obligation to conduct a de novo review. Accordingly, the Court reviewed the R&R for clear error. The Court agrees with the finding of the Magistrate Judge that subject matter jurisdiction does not exist [Dkt. No. 13 at 9-10]. As determined by the Magistrate Judge, prisoners seeking to challenge the validity of their convictions or their sentences are generally required to proceed under § 2255 in the district court of conviction [Id. at 6]. A petition under § 2241 is intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated [Id.]. There is a savings clause in § 2255 that allows a prisoner to challenge the validity of his conviction and/or his sentence under § 2241 if he can demonstrate that § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The Petitioner bears the burden of showing that the § 2255 is inadequate or ineffective and the standard is exacting [Dkt. No. 13 at 7]. Here, Petitioner fails to meet the standard and the Court lacks subject matter jurisdiction over the § 2241 petition.
The law is clear, however, that relief under § 2251 is not inadequate or ineffective merely because relief has become unavailable under § 2255 because of (1) a limitation bar, (2) the prohibition against successive petitions, or (3) a procedural bar due to failure to raise the issue on direct appeal. In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997). --------
Upon careful review of the R&R, the Court:
(1) ADOPTS the R&R [Dkt. No. 13] for reasons more fully stated therein;
(2) DENIES and DISMISSES WITHOUT PREJUDICE the petition [Dkt. No. 1]; and
(3) STRIKES this action from the active docket of the Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record and to the pro se prisoner, via certified mail, return receipt requested. DATED: June 23, 2020
/s/_________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE