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Makwa v. Saad

United States District Court, N.D. West Virginia, Elkins

July 2, 2018

NODIN MAKWA, Petitioner,
JENNIFER SAAD, Warden, Respondent.



         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc. 11]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Seibert filed his R&R on June 8, 2018, wherein he recommends this Court dismiss the petition and action for lack of jurisdiction.


         In January of 2016, the petitioner was named in a one-count indictment in the District of Minnesota, which alleged that he had violated 18 U.S.C. § 111(a), when he struck a deputy sheriff with his car, while the deputy was working with tribal authorities and agents from the Federal Bureau of Investigations.[1] The petitioner unsuccessfully challenged the indictment, and argued that the charge should be dismissed for lack of jurisdiction or improper charging, because the deputy was not a federal law enforcement officer. The district judge noted that the offense occurred after an alleged armed assault on a reservation, when an FBI agent assigned to investigate violent crimes on the reservation requested the deputy's help in pursuing the petitioner after he left reservation grounds. During the attempt to stop the petitioner's pursuit, the petitioner struck the deputy with his car. Accordingly, the judge determined that whether the deputy was injured while assisting federal officers in performing their duties was a question for the jury to decide.

         Subsequently, in August of 2016, the petitioner pled guilty to the single count pursuant to a written plea agreement. The agreement provided that the charge carried a maximum penalty of twenty years imprisonment, three years supervised release, a $250, 000 fine, the mandatory special assessment fee, and mandatory restitution in an amount to be determined by the court. On September 29, 2016, the petitioner was sentenced to 108 months incarceration and three years of supervised release. The petitioner did not file a direct appeal or a collateral attack prior to the instant petition.

         On May 18, 2018, the petitioner filed the instant Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 in this district [Doc. 1]. Therein, he seeks relief on four grounds:

(1) Lack of Jurisdiction, because the deputy was not a federal agent;
(2) Actual Innocence, because he did not have criminal intent and the deputy was not a federal agent;
(3) Unconstitutional Broadness or Vagueness of 18 U.S.C. § 111(a)(1), because it could be satisfied in multiple ways; and,
(4) Ineffective Assistance of Counsel, because the petitioner found information that his counsel told him was not available, and because counsel pressured him to accept a plea agreement.

         [Doc. 1]. Because the petitioner's § 2241 petition advances claims that are not cognizable in a § 2241 petition, the magistrate judge issued a Notification to Petitioner of Right to Consent to Proceed Under 28 U.S.C. § 2255 or to Proceed as Filed [Doc. 6]. Therein, the magistrate judge notified the petitioner that his motion is properly construed as a § 2255 petition, and informed him of the potential consequences of such construal. Within the time allotted, petitioner elected to have his petition construed as filed, as a § 2241 petition [Doc. 10].

         On June 8, 2018, the magistrate judge issued his R&R, and recommended that this Court dismiss the action for want of jurisdiction, because the petitioner has not met his burden to show that § 2255 is an inadequate or ineffective remedy and thus cannot avail himself of the savings clause [Doc. 11]. The petitioner timely filed objections, and presented two claims of error: (1) that § 2255 is inadequate or ineffective because it is now time-barred; and (2) that the savings clause offers relief from an illegal detention [Doc. 13].


         Pursuant 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, 474 U.S. at 150. In addition, failure to file timely objections constitutes a waiver of de novo review and the 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 Seibert's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. ยง 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on June 12, 2018 [Doc. 12]. ...

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