United States District Court, N.D. West Virginia, Martinsburg
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Michael J. Aloi. Pursuant to Rule 2
of the Local Rules of Prisoner Litigation Procedure, this
action was referred to Magistrate Judge Aloi for submission
of a proposed report and recommendation. On August 26, 2016,
Magistrate Judge Aloi conducted an initial review and filed a
report and recommendation (“R&R”). ECF No.
12. In the R&R, the magistrate judge recommends that this
Court deny and dismiss with prejudice the Petitioner's 28
U.S.C. § 2241 petition.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Moreover, failure to file timely objections constitutes a
waiver of de novo review and the petitioner's
right to appeal this Court's Order. 28 U.S.C. §
636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366
(4th Cir. 1989); United States v. Schronce, 727 F.2d
91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge
Aloi's R&R were due within fourteen (14) days after
being served with a copy of the R&R pursuant to 28 U.S.C.
§ 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure. Petitioner was served with the R&R on August
29, 2016. Petitioner timely filed his objections on September
9, 2016. Accordingly, this Court will undertake a de
novo review of those portions of Magistrate Judge
Aloi's findings to which objection is made. This Court
will review the remainder of the R&R for clear error.
August 10, 1978, the Superior Court for the District of
Columbia sentenced the Petitioner to serve thirty years to
life in prison for various crimes in two different cases,
including carrying a pistol without a license, armed
burglary, assault with a dangerous weapon, assault with
intent to kill and first degree murder while armed. In 1988,
the Petitioner escaped from confinement, and he was not
located and arrested until 1995. In 1996, the Petitioner
received an additional twelve-month sentence for escape, to
run consecutive to any other sentences.
primary ground for relief, the Petitioner avers that no
indictment was ever issued on the charges of which he was
convicted. The Petitioner also mentions that he was denied
counsel, and the official court docket was falsified and
removed from the courthouse during his first appeal in 1979.
Accordingly, the Petitioner asserts that this Court must now
hold a hearing “for the purpose of certifying this
conviction can not stand and this Petitioner must be
freed.” ECF No. 1 at 5. In the R&R, Magistrate
Judge Aloi found that this Court lacks jurisdiction in the
case sub judice, and therefore, it should be
dismissed with prejudice.
reviewing the content of his objections, the Petitioner
largely rehashes the argument in his Petition as objections
to Magistrate Judge Aloi's R&R. At most, the only new
argument posited by the Petitioner in his objection is
“the onus [is] on the citizen to show that an act by
congress must be shown hallow in order to grant review. . . .
That is inane. . . . Moreover the state courts can never
review any act of congress for the purpose of its
constitutionality, thus no citizen can be required to do
Since passage of the Court Reform Act, however, a District of
Columbia prisoner seeking to collaterally attack his sentence
must do so by motion in the sentencing court-the Superior
Court-pursuant to D.C.Code § 23-110.4 Thus a District of
Columbia prisoner bears a certain resemblance to his federal
counterparts who must collaterally challenge their sentences,
not by seeking a writ of habeas corpus in the district where
they are in custody, but by motion pursuant to 28 U.S.C.
§ 2255 in the district where they were sentenced.
Despite the similarity there is one obvious difference
between a federal prisoner and a District of Columbia
prisoner: a federal prisoner who seeks collateral relief
pursuant to section 2255 is heard by an Article III court
(i.e. the federal district court that imposed sentence)
whereas a District of Columbia prisoner who seeks collateral
relief pursuant to section 23-110 of the D.C.Code is heard by
an Article I court (i.e. the Superior Court). In order to
collaterally attack his sentence in an Article III court a
District of Columbia prisoner faces a hurdle that a federal
prisoner does not. Namely, he must show that the relief by
motion in Superior Court pursuant to section 23-110 of the
D.C.Code “is inadequate or ineffective to test the
legality of his detention.” D.C. Code § 23-110(g).
Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir.
determining that D.C. Code § 23-110(g) “cannot
fairly be read as merely requiring the exhaustion of local
remedies[, ]” the Supreme Court of the United States
characterized it as an “unequivocal statutory command
to federal courts not to entertain an application for habeas
corpus after the applicant has been denied collateral relief
in the Superior Court.” Swain v. Pressley, 430
U.S. 372, 377 (1977). Thus, even construing the
Petitioner's objections liberally, no cognizable argument
exists therein to support any conclusion other than the one
Magistrate Judge Aloi reached in his R&R.
careful review of the record, it is the opinion of this Court
that the magistrate judge's R&R should be, and is,
hereby ORDERED ADOPTED for the reasons more fully stated
therein. The Petitioner's Objections are OVERRULED. It is
further ordered that the Petitioner's Motion for Hearing
[ECF No. 9] and Motion for Injunction [ECF No. 11] are DENIED
AS MOOT. Accordingly, the Petitioner's § 2241
petition is DENIED and DISMISSED WITH PREJUDICE and STRICKEN
from the active docket of this Court.
Clerk is directed to transmit copies of this Order to all
counsel of record and to mail a copy to the pro se
Petitioner by certified mail, return receipt requested, ...