United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILAEY, UNITED STATES DISTRICT JUDGE.
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.
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. 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.
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.
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
(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
(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
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].
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].
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. § 636(b)(1) and Fed.R.Civ.P.
72(b). The docket reflects that service was accepted on June
12, 2018 [Doc. 12]. ...