United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. ECF No. 7. Pursuant to this Court's
Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate
Judge Trumble issued his R&R on August 13, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner's
§ 2241 petition [ECF No. 1] be denied and dismissed
August 12, 2019, the Petitioner filed a Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1. Therein,
the Petitioner challenges his conviction and sentence,
arguing that he “is actually innocent of violating the
element ‘knowing' in Sec. 922(g)(1)”.
Id. at 1, 5. Specifically, the Petitioner avers that
he “was never told in writing (after completing
probation or parole), or orally by the Government, or the
Court that he was a person barred from possessing a
firearm.” ECF No. 1-1 at 2. He further alleges that
there was judicial misconduct. The Petitioner requests that
the Court vacate and remand for a correction of his sentence
or vacate his conviction entirely. ECF No. 1 at 8.
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 v. Arn, 474 U.S. 140, 150 (1985).
Failure to file timely objections constitutes a waiver of
de novo review and of a Petitioner's 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).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Petitioner being served with
a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The R&R was mailed to the Petitioner by certified
mail on August 13, 2019. ECF No. 7. The Petitioner accepted
service on August 16, 2019. ECF No. 9. The Petitioner filed
objections on August 23, 2019. ECF No. 10. Having timely
filed his objections, this Court will review the
Petitioner's objections to the R&R de novo.
The Court will review the remainder of the R&R for clear
R&R, Magistrate Judge Trumble recommends that the §
2241 petition be denied and dismissed without prejudice
because the Court lacks jurisdiction. Specifically, the
Petitioner's motion to vacate pursuant to 28 U.S.C.
§ 2255, where he seeks vacation of his conviction and
sentence, is still pending in the United States District
Court for the Central District of Illinois. The Petitioner is
seeking the same relief in both proceedings, and the relief
is more appropriately considered in the district where he was
Petitioner's objections, he asserts that he filed a
motion to withdraw his motion to vacate in the Central
District of Illinois. ECF No. 10 at 2. The Petitioner further
avers that a § 2255 motion is inadequate and ineffective
to address his issues. Id. Upon review of the
Petitioner's motion to vacate in the Central District of
Illinois, Case Number 2:19-cv-2217, the Petitioner did file a
motion to withdraw on August 26, 2019. However, his motion to
vacate remains pending in the Central District of Illinois.
Accordingly, the Petitioner's objection is
OVERRULED because the relief he is seeking
is more appropriately considered in his motion to vacate
currently pending in the Central District of Illinois.
upon careful review of the R&R and the Petitioner's
objections, it is the opinion of this Court that Magistrate
Judge Trumble's Report and Recommendation [ECF No. 7]
should be, and is hereby, ORDERED ADOPTED
for the reasons more fully stated therein. The
Petitioner's § 2241 Petition [ECF No. 1] is
DENIED and DISMISSED WITHOUT
Clerk is DIRECTED to strike this matter from
the Court's active docket. The Clerk is further
DIRECTED to transmit copies of this Order to
all counsel of record herein and to mail a copy of this Order
to the pro se Petitioner by certified mail, return ...