United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT.,
M. KEELEY, UNITED STATES DISTRICT JUDGE
On April 14, 2016, the pro se petitioner, Timothy David Danko
("Danko"), an inmate at FCI Allenwood, filed a
motion to vacate pursuant to 28 U.S.C. §§ 2255,
which the Court referred to United States Magistrate Judge
Michael J. Aloi for initial screening and a Report and
Recommendation("R&R") in accordance with LR PL
P 2. Danko's petition asserted two claims for relief.
First, Danko claims that his counsel was ineffective for
failing to advise him or object to the amended presentence
report (“PSR”) that raised his restitution to one
of the victims from $1, 500.00 to $3, 625.60. Next, Danko
claims that the Court relied on unverified, fraudulent
declarations regarding the victim's loss in determining
the amount of restitution.
20, 2017, Magistrate Judge Aloi issued an R&R, in which
he recommended that the Court dismiss Danko's petition
because the claim for relief that he seeks is not properly
brought under a § 2255 petition (dkt. no. 8 at 6-7).
Further, to the extent that the relief Danko seeks may be
brought pursuant to a § 2241 petition, such a petition
must be brought in the jurisdiction where he is currently
incarcerated, which is the Middle District of Pennsylvania.
Id. at 7. The R&R also specifically warned Danko
that his failure to object to the recommendation would result
in the waiver of any appellate rights he might otherwise have
on this issue. Id. at 7-8. On July 12, 2017, Danko
filed his objection to the R&R (dkt. no. 10).
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions of the R&R to
which an objection is timely made. See 28 U.S.C.
§ 636(b)(1)(C). The Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In such cases, “the Court may
adopt, without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellaciprete 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)). Further, courts will uphold those
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).
failure to file specific objections waives appellate review
of both factual and legal questions. See United States v.
Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir. 1984);
Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991). Finally, objections that reiterate the same arguments
already presented and fully addressed in the R&R
“lack the specificity required by Rule 72 and have the
same effect as a failure to object.” Phillips v.
Astrue, 2011 WL 5086851, at *2 (W.D.Va. Oct. 25, 2011)
(citing Veney v. Astrue, 539 F.Supp.2d 841, 845
objections simply reiterate arguments he previous raised in
his petition, which were clearly addressed and thoroughly
analyzed in Judge Aloi's R&R, and, therefore, the
R&R is subject only to clear error review.
Phillips, 2011 WL 5086851, at *2. Danko once again
argues that he was unaware that the amount of restitution to
one of his victims had increased from $1, 500.00 in the
original PSR, to $3, 650.00 in the amended PSR. His objection
claims that he “had no reason to suspect that there was
a revised PSR or increased restitution, until it was pointed
out by his Unit Team at FCI Allenwood.” Dkt. No. 1 at
3. Further, he contends that he “could not have become
aware of the revised PSR until September, 2015, when his unit
team informed him of the increase in his restitution.”
Id. at 4.
begin, the R&R correctly notes that Danko cannot
challenge his restitution through a § 2255 petition.
See United States v. Bernard, 351 F.3d 360, 361 (8th
Cir. 2003) (collecting cases and noting that “the plain
and unambiguous language of [§ 2255] - “[a]
prisoner in custody . . . claiming the right to be
released” -precludes a restitution challenge”);
U.S. v. Hudgins, 201 Fed.Appx. 142 (4th Cir. 2006)
(unpublished) (citing Bernard). Challenges to
restitution may only be brought through a § 2241
petition in the judicial district in which the defendant is
currently incarcerated, which, in Danko's case, is the
Middle District of Pennsylvania. See Bernard, 351
F.3d at 361; Hudgins, 201 Fed.Appx. at 143.
even if the Court had jurisdiction to hear Danko's
challenge, his claim would fail on the merits. Although he
argues that he was unaware of the amount of restitution until
September 2015, Danko's memory fails him - badly. A
review of the sentencing transcript completely belies
Danko's arguments. During the sentencing hearing, the
Court discussed with the parties the amended PSR and,
specifically, the increase in restitution due to one of
Danko's victims. See Case No. 1:08-cr-80, dkt.
no. 50 at 5. Indeed, not only was there a lengthy discussion
of the issue, the government called the victim as a witness
in order to establish the proper amount of restitution.
Id. at 14-20. Following the victim's testimony,
the Court made the clear determination that the proper amount
was $3, 625.60. Id. at 20. Thus, it is quite
evident that Danko was aware of the amount of restitution at
the time of his sentencing and any argument that he first
learned of the amended PSR or the increased restitution
amount until September 2015 - six and one half years later -
is entirely baseless.
reviewing the record and the R&R, and finding no clear
error, the Court ADOPTS the R&R in its
entirety (dkt. no. 8), DENIES Danko's
petition, DISMISSES this case
WITHOUT PREJUDICE, and
ORDERS this case stricken from its active
to Rule ll(a) of the Rules Governing Section 2254 and Section
2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant” in such cases. If the court
denies the certificate, “the parties may not appeal the
denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.” 28
U.S.C. foll. § 2255 (a). The Court finds it
inappropriate to issue a certificate of appealability in this
matter because Danko has not made a “substantial
showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c) (2). A petitioner satisfies this
standard by demonstrating that reasonable jurists would find
that any assessment of the constitutional claims by the
district court is debatable or wrong, and that any
dispositive procedural ruling by the ...