United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of a Report and
Recommendation (“R&R”) issued by United
States Magistrate Judge Michael J. Aloi. Pursuant to this
Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of an R&R. On March
2, 2017, Magistrate Judge Aloi issued his R&R,
recommending 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, this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a petitioner's
right to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule
72(b) of the Federal Rules of Civil Procedure, objections to
Magistrate Judge Aloi's R&R were due within fourteen
days after being served with a copy of the same. The
Petitioner was served with the R&R on March 7, 2017, and
timely filed objections. The crux of the Petitioner's
objections concerns a claim of actual innocence, which he
argues entitles him to review of his § 2241 petition on
the merits. He advises his plea agreement and transcripts
reveal that he plead guilty to crimes not charged in the
indictment. On the contrary, on July 19, 2012, the Petitioner
plead guilty to Counts Five and Six of the superseding
indictment. Judgment and Commitment, United States v.
Montgomery, 5:08-CR-00387-OLG-1 (W.D. Tex. July 30,
2012), ECF No. 139. During the plea hearing, the magistrate
judge found that there was a factual basis for the plea and
that it was freely and voluntarily made. Memorandum and
Recommendation, Montgomery, 5:08-CR-00387-OLG-1
(W.D. Tex. July 19, 2012), ECF No. 130. A review of the
record in the Petitioner's Western District of Texas case
does not substantiate his claim of actual innocence, but
rather supports his underlying conviction for bank robbery
and using a firearm during a crime of violence as charged in
Counts Five and Six of the superseding indictment.
Accordingly, the Court OVERRULES the
articulated by Magistrate Judge Aloi in the R&R, the
Petitioner is not entitled to utilize § 2241 to assert
his actual innocence claim. A § 2241 petition is
appropriate when it “attacks . . . the execution of a
sentence.” Fontanez v. O'Brien, 807 F.3d
84, 87 (4th Cir. 2015) (collecting cases); see also In re
Vial, 115 F.3d 1192, 1994 n.5 (4th Cir. 1997).
Alternatively, a petition is properly filed pursuant to
§ 2255 when it attacks the legality of a conviction or
sentence. United States v. Hadden, 475 F.3d 652, 660
(4th Cir. 2007); Charles v. Chandler, 180 F.3d 753,
755-56 (6th Cir. 1999) (per curiam) (collecting cases). In
limited circumstances, a federal prisoner may bring his claim
pursuant to § 2241 if he demonstrates that relief
provided under § 2255 is inadequate or ineffective.
See 28 U.S.C. § 2255; In re Jones, 226
F.3d 328, 333 (4th Cir. 2000). Here, the Petitioner attacks
the legality of his conviction and sentence and has failed to
meet the savings clause requirements as announced in
Jones. See Jones, 226 F.3d at 333-34. Thus,
a § 2255 petition is the proper mechanism with which to
pursue his claim.
consideration, and finding no error, the Court
ORDERS Magistrate Judge Aloi's Report
and Recommendation [ECF No. 20] ADOPTED for
the reasons more fully stated therein. The Court
DENIES and DISMISSES the
Petitioner's 28 U.S.C. § 2241 petition [ECF No. 1]
WITH PREJUDICE and DENIES
the Petitioner's motion for evidentiary hearing [ECF No.
14], motion to discharge and for summary judgment [ECF No.
15] and motion to appoint counsel [ECF No. 16] AS
the instant petition seeks relief pursuant to § 2241,
the Court makes no certificate of appealability determination
in this matter.
Court DIRECTS the Clerk to strike this case
from the active docket, enter a separate judgment order in
favor of the Respondent and mail a copy of this Order to the
pro se Petitioner by certified mail, return receipt
 The Court received, and has
considered, both the Petitioner's original objections
[ECF No. 23] on March 16, 2017, and amended objections [ECF