Opinion
Case No. 20-CV-863 (NEB/ECW)
07-24-2020
ALAN TIKAL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION
Petitioner Alan Tikal filed a "notice/motion to: set, complete, amend and approve enclosed bond for substitute res and release and/or immediate discharge." (ECF No. 1.) Tikal also filed an application to proceed in forma pauperis. (ECF No. 2.) Noting that Tikal is serving a 288-month sentence imposed by the United States District Court for the Eastern District of California, in a Report and Recommendation dated April 17, 2020 Magistrate Judge Elizabeth Cowan Wright construed Tikal's "notice/petition" as a petition for writ of habeas corpus and recommended that this action be dismissed as frivolous. (ECF No. 8 ("R&R").) The R&R also recommended that Tikal's pending motions be denied as moot. (See id. at 4.) Tikal has since filed similar motions. (See ECF Nos. 10, 17.) Tikal has also filed an objection to the R&R. (ECF No. 13.)
A district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Tikal's objection does not address the R&R's factual findings or legal determinations. (See generally ECF No. 13.) Rather, Tikal makes the same claim for relief that the R&R deemed frivolous: "that a handwritten 'bond' of his own derivation may be deposited with the courts, and that the bond may act as a 'substitute res' taking his place in corporeal detention." (R&R at 3; see also ECF No. 13 at 1 (arguing "corpus of Alan Tikal is the res of USA v. Tikal," that "claimant has standing to claim and contract," and that "claimant caused bonds to be tendered sufficient for stated purposes").)
Even applying a de novo standard of review, this Court finds no fault with the R&R's conclusions: as the R&R correctly stated, the criminal proceedings against Tikal are in personam and not in rem. (See R&R at 3; see also, e.g., United States v. Caruthers, 765 F.3d 843, 845 (8th Cir. 2014) (explaining that even criminal forfeiture proceedings are in personam because they are ancillary to the underlying criminal case).) In short, the government initiated a criminal proceeding against Tikal, not his property, and having been found guilty and sentenced he can offer no "substitute res" to take his place in custody. And because the Court agrees with the R&R that this action is frivolous, all of Tikal's pending motions as well as his pending application to proceed in forma pauperis are moot. (See ECF Nos. 2, 5, 10, 17.)
Based upon all the files, records, and proceedings in the above-captioned matter, IT IS HEREBY ORDERED THAT:
1. The Report and Recommendation (ECF No. 8) is ACCEPTED;
2. Tikal's petition, construed as a petition for writ of habeas corpus under 28 U.S.C. § 2241 (ECF No. 1), is DENIED;
3. Tikal's application to proceed in forma pauperis (ECF No. 2) is DENIED;
4. Tikal's pending motions (ECF Nos. 5, 10, 17) are DENIED AS MOOT; and
5. The action is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: July 24, 2020
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge