Rice v. Lamanna

• Citation: 451 F.Supp.2d 755
• Decision Date: 21 April 2006
• Docket Number: C.A. No. 4:05-3078-PMD.
• Parties: James RICE, Petitioner, v. John J. LAMANNA, Warden.
• Court: U.S. District Court — District of South Carolina

451 F.Supp.2d 755

James RICE, Petitioner, v. John J. LAMANNA, Warden.

C.A. No. 4:05-3078-PMD.

United States District Court, D. South Carolina, Florence Division.

April 21, 2006.

COPYRIGHT MATERIAL OMITTED

James Rice, Edgefield, SC, Pro se.

ORDER

DUFFY, District Judge.

This matter is before the court upon Petitioner Rice's ("Rice") petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. The Record contains a Report and Recommendation ("R & R") of a United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge's R & R recommends dismissal of Rice's petition without prejudice. A party may object, in writing, to a R & R within ten days after being served with a copy of the R & R. 28 U.S.C. § 636(b)(1). Rice filed timely objections to the R & R.

BACKGROUND

Petitioner Rice is a federal prisoner at the Federal Correctional Institute in Estill, South Carolina. The United States District Court for the Southern District of Florida entered Rice's conviction and sentence for violations of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. §§ 924(c) and 111. On appeal, the Eleventh Circuit Court of Appeals affirmed the conviction and sentence. Petitioner apparently has filed at least one motion to vacate, set aside, or correct a Sentence pursuant to 28 U.S.C. § 2255.¹

In his § 2241 petition,² Rice claims that the United States Attorney failed to file a written information prior to trial, as required by 21 U.S.C. § 851(a)(1).³ Rice contends that this failure deprived the trial court of jurisdiction to sentence him. Rice also contends that "he is actually innocent of the sentence imposed." (Pet.'s Memo at 3.)

STANDARD OF REVIEW

This court is charged with conducting a de novo review of any portion of the Magistrate Judge's R & R to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendations contained in that R & R. 28 U.S.C. § 636(b)(1). After a review of the entire record, the R & R, and Petitioner's objections, the court finds that the Magistrate Judge fairly and accurately summarized the facts and applied the correct principles of law. Accordingly, the R & R is adopted in whole and incorporated into this Order.

ANALYSIS

Unlike a § 2255 motion which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir.2000). Generally, a § 2241 petition "attacks the execution of a sentence rather than its validity," whereas a § 2255 motion "attacks the legality of detention." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996); see also United States v. Miller, 871 F.2d 488, 489-90 (4th Cir.1989) (distinguishing between attacks to the "computation and execution of the sentence rather than the sentence itself'). Here, because Rice attacks the validity of his conviction and sentence, his claims are the type which normally should be brought under § 2255.

A district court is prohibited from entertaining an application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to § 2255 "if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief." 28 U.S.C. § 2255. However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's detention when § 2255 is "inadequate or ineffective to test the legality of . . . detention." 28 U.S.C.A. § 2255; Jones, 226 F.3d at 333. Section 2255 is inadequate and ineffective to test the legality of a conviction when:

(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;

(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.

Jones, 226 F.3d at 333-34. However, section 2255 is not inadequate or ineffective merely because a prior motion has been unsuccessful or because the petitioner is unable to meet the gatekeeping requirements for filing a second or successive § 2255 motion. See Jones, 226 F.3d at 333 ("It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision."). Petitioner bears the burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of § 2255.

Here, Rice claims that § 2255 is inadequate or ineffective because he is "actually innocent of the sentence imposed upon him." (Pet.'s Memo at 3.) However, as the Magistrate Judge concluded, Rice's bare allegations of actual innocence, unsupported by any new, reliable evidence, are not sufficient to place his petition within the scope of § 2241. Rather, his claims place his petition within the scope of § 2255, which is not, inadequate or ineffective merely because the AEDPA's gatekeeping restrictions prevent Rice from using it. See, e.g., Paige v. Holt, 150 Fed. Appx. 141, 142 (3d Cir.2005) (unpublished) ("His claims of actual innocence and improper sentencing place his petition squarely within the scope of § 2255. Section 2255 is not inadequate simply because AEDPA's gatekeeping restrictions prevent Paige from availing himself."). Moreover, because Rice does not cite any new, retroactively applicable Supreme Court decision, he cannot satisfy any of the requirements of § 2255's savings clause. Accordingly, Rice is not entitled to bring this action under § 2241.

I. Rice's Objections to the R & R

Rice raises two main objections to the R & R. First, he objects to the delegation of this "true habeas corpus petition" to a Magistrate Judge and asserts that such delegation is unconstitutional (Obj. at 3.) Essentially, Rice argues that the Magistrate Judge lacked jurisdiction to consider this matter and that he did not consent to the Magistrate Judge's consideration of this matter. Second, Rice objects that he was not given notice beforehand of the Magistrate Judge's intent to, construe his § 2241 claim as a § 2255 claim, as required by United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002), and Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003).

First, with respect to Rice's claim that the Magistrate Judge lacked jurisdiction to consider the matter, such objection is wholly without merit. See 28 U.S.C. § 636(b)(1)(B) ("[A] judge may designate a magistrate judge . . . to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court . . . of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement."). Here, § 636(b)(1)(B) clearly authorized the Magistrate Judge to review Rice's petition and submit findings and recommendations to the court.

Likewise, Rice's objection that he was not given notice beforehand of the Magistrate Judge's intent to construe his § 2241 petition as a § 2255 motion, in violation of Castro v. United States, 540 U.S. 375, 377, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003), and United States v. Emmanuel 288 F.3d 644, 649 (4th Cir.2002), is without merit. See Burns v. Lamanna, 2006 WL 149060, *3 (D.S.C. Jan. 19, 2006) (finding the petitioner's objection that the court lacked authority to construe his § 2241 petition as a § 2255 without merit). In Emmanuel, the Fourth Circuit held that "if a prisoner files a motion that is not denominated a § 2255 motion and the court at its option prefers to convert it into the movant's first § 2255 motion, the court shall first advise the movant that it intends to so recharacterize the motion." 288 F.3d 644. (emphasis added). However, the Fourth Circuit stated: "We wish to stress that the notice requirements imposed in this opinion are based on the assumption that the recharacterization will have some adverse consequence on the movant. In cases where no adverse consequences will ensue, the district court need not give the movant any notice prior to proceeding with the recharacterization." Id. at 650.

Here, the court is not faced with construing Rice's § 2241 petition as his first § 2255 motion.⁴ Also, because it is not his first § 2255 motion, no adverse consequences will ensue. Accordingly, Rice's objection that he was entitled to notice before the Magistrate Judge construed his § 2241 petition as a § 2255 motion is without merit. See also Burns, 2006 WL 149060 at *3. ("[T]he court does not dismiss Burns' petition on the basis that it is a successive § 2255 motion. Rather, Burns' petition is dismissed because he has failed to meet the requirements to proceed under § 2241.").

CONCLUSION

It is therefore ORDERED, for the foregoing reasons, that Rice's § 2241 petition is summarily DISMISSED without prejudice and without issuance and service of process.

AND IT IS SO ORDERED.

Report and Recommendation

ROGERS, United States Magistrate Judge.

BACKGROUND OF THIS CASE

The petitioner is a federal inmate at FCI-Edgefield. He is serving a federal sentence for violating sections of the United States Code. Petitioner's conviction and sentence were entered in the United States District Court for the Southern District of Florida. The conviction was upheld on direct appeal by the United States Court of Appeals for the Eleventh Circuit. The petitioner has apparently filed at least one (1) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of Florida¹.

In the § 2241 petition the petitioner raises one (1) ground. Specifically, the petitioner contends...