United States District Court, N.D. West Virginia
KENNETH B. HUNTER, Petitioner,
JENNIFER SAAD, Warden, Respondent.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AS FRAMED,
OVERRULING PETITIONER'S OBJECTIONS AND DISMISSING CIVIL
ACTION WITHOUT PREJUDICE
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se petitioner, Kenneth B. Hunter, is a
federal inmate designated to FCI Gilmer. Following a jury
trial, the petitioner was convicted of four counts of first
degree murder, two counts of assault with intent to kill, one
count of arson, and one count of destruction of property. ECF
No. 10 at 1. On June 24, 1987, the Superior Court for the
District of Columbia sentenced the petitioner to life.
Id. at 1.
petitioner filed a Petition for Habeas Corpus Under 28 U.S.C.
§ 2241. ECF No. 1. In the petition, the petitioner
alleges that the Federal Bureau of Prisons
(“BOP”) improperly calculated his federal
sentence. The petitioner alleges that his Fifth Amendment Due
Process Rights were violated when he did not receive fair
notice. Id. at 5. Petitioner states that
“[b]ecause [first] degree murder is such a serious
offense, the [p]etitioner's intent must be examined in
order to arrive at the conviction. [The District of
Columbia's] definition of murder has various prongs to be
met. If not then you don't have murder of any
degree.” Id. The petitioner presumably means
the issue of intent was not raised at his original criminal
trial. For relief, the petitioner requests that his
conviction and sentence be overturned, and a new trial held.
Id. at 8.
States Magistrate Judge James E. Seibert entered a report and
recommendation. ECF No. 10. The magistrate judge recommends
the petitioner's petition be denied and dismissed with
prejudice. Id. at 5.
petitioner timely filed objections. ECF No. 12. In his
objections, the petitioner argues that “[t]he
Petitioner acknowledges that a [§] 23-110 motion may
have been available, but the issues raised in the instant
offense cannot be adequately addressed in the [District of
Columbia] court system.” Id. at 2. First,
petitioner contends that he “did, within the [District
of Columbia] system, exhaust the required steps in order to
present his claim in the [United States] district
courts.” Id. Second, petitioner argues that
“even though the petitioner raised a valid issue of
intent concerning the murder charge, none of his issues were
addressed . . . The fact is that the [§] 23-110 motion
was inadequate and ineffective to test the legality of his
detention, not because the petitioner lost, but because the
[District of Columbia] Superior Courts have, in the past,
simply rejected his motions outright without requiring the
normal adversarial testing required by law.”
Id. at 2-3. In conclusion, petitioner requests that
“his motion be granted and his issues fully explored,
and relief be granted to him.” Id. at 3.
reasons set forth below, the report and recommendation of the
magistrate judge (ECF No. 10) is affirmed and adopted, and
the petitioner's objections (ECF No. 12) are overruled.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A). As the
Supreme Court of the United States stated in United
States v. United States Gypsum Co., “a finding is
‘clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” 333 U.S. 364, 395 (1948). Because the
petitioner filed objections to the report and recommendation,
the magistrate judge's recommendation will be reviewed
the magistrate judge correctly explained that prisoners
sentenced by the Superior Court of the District of Columbia
may collaterally challenge the constitutionality of their
convictions under District of Columbia Code § 23-110.
Id. at 3 (citing Garris v. Lindsay, 794
F.2d 722, 725). If a petitioner uses § 23-110, then he
may appeal in the District of Columbia Court of Appeals.
Id. Second, the magistrate judge properly noted that
although prisoners sentenced by state courts may use federal
habeas corpus petitions after exhausting state remedies,
“a District of Columbia prisoner has no recourse to a
federal judicial forum unless the local remedy is inadequate
or ineffective to test the legality of his detention.”
Id. at 4 (citing Swain v. Pressley, 430
U.S. 372, 377 (1977) (internal quotation marks omitted)).
petitioner has not demonstrated that the remedy available
under § 23-110 is an “inadequate or
ineffective” means of challenging his sentence.
Specifically, the magistrate judge correctly found that
petitioner's prior unsuccessful challenges to his
sentence are insufficient to show the available remedy is
“inadequate or ineffective.” Id. at 5.
this Court lacks jurisdiction to entertain the petition, and
will not address petitioner's claims relating to issues
of intent. This Court adopts and affirms the report and
recommendation in its entirety, and the ...