Ferguson v. United States of America

Filing 9

MEMORANDUM OPINION ADOPTING and ACCEPTING the 6 Magistrate Judge's Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 3/11/2015. (JLC)

FILED
2015 Mar-11 PM 01:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CATHY DIANE FERGUSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 7:14-cv-01501-VEH-SGC

MEMORANDUM OPINION
On November 4, 2014, the magistrate judge entered a report recommending this
petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, be dismissed for
lack of jurisdiction or, alternatively, be denied as time-barred. (Doc. 6). The magistrate
judge’s recommendation was based on her conclusion that, while styled as a § 2241
petition, this matter is actually a motion to vacate, amend, or correct sentence pursuant
to § 2255. (Id.). In response, petitioner filed a pleading styled as a “Notice of Appeal
to 11th Circuit.” (Doc. 8). The substance of the pleading asserts the magistrate judge
exceeded her authority and the court erred by adopting the report and recommendation
as a final order. (Id.).

Because no final order has been entered in this case, there is nothing to appeal.1
Accordingly, the undersigned construes petitioner’s most recent filing as objections to
the report and recommendation. Additionally, because there has been no final order in
this case, petitioner’s objections are devoid of merit. The magistrate judge’s report and
recommendation complies with the provisions of 28 U.S.C. § 636. Accordingly,
petitioner’s objections are OVERRULED.
Having carefully reviewed and considered de novo all the materials in the court
file, the court ADOPTS the magistrate judge’s report and ACCEPTS her
recommendation. Accordingly, the petition for writ of habeas corpus is due to be
dismissed without prejudice for lack of jurisdiction or, alternatively, denied as timebarred. Additionally, to the extent a certificate of appealability might be required, it is
DENIED for the reasons stated in the report and recommendation. Petitioner may seek
a certificate of appealability directly from the Eleventh Circuit Court of Appeals.
A final judgment will be entered.

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The magistrate judge informed petitioner that the report and recommendation could not
be appealed to the Eleventh Circuit and that any such appeal could only be made from a final
judgment entered by a district judge. (Doc. 6 at 9). No district judge has, prior to today, entered a
final judgment.
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DONE this 11th day of March, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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