Sneed v. Drew
Filing
8
OPINION AND ORDER ADOPTING the 3 Final Report and Recommendation. This action is DISMISSED. Signed by Judge William S. Duffey, Jr on 10/11/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
OLIVER SNEED, JR.,
Petitioner,
v.
1:13-cv-790-WSD
MS. DREW,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [3] (“R&R”).
I.
BACKGROUND
On March 11, 2013, Petitioner Oliver Sneed, Jr. (“Petitioner”), an inmate at
the United States Penitentiary in Atlanta proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges his
sentence imposed by the United States District Court for the Eastern District of
Virginia. He alleges that the United States Attorney’s office failed to honor its
promise to seek a reduction of his sentence under Rule 35 of the Federal Rules of
Criminal Procedure.
On April 15, 2013, Magistrate Judge Anand issued his R&R after reviewing
the petition under Rule 4 of the Rules Governing Section 2254 Cases. Judge
Anand first noted that habeas actions under § 2241 are generally limited to cases
where the petitioner challenges either federal confinement that is not pursuant to a
sentence of a federal court or the unlawful execution of a valid sentence. (R&R [3]
at 3 (citing Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991)).) Judge Anand
further noted that federal prisoners are otherwise required to bring habeas petitions
under 28 U.S.C. § 2255, unless “the remedy by [§ 2255] motion is inadequate or
ineffective to test the legality of the detention.” (Id. (quoting Marshall v. United
States, 514 F. App’x 936, 937 (11th Cir. 2013)).) Judge Anand found that, in this
case, Petitioner failed to show, or even argue, that § 2255 relief is “inadequate or
ineffective.”1 Judge Anand thus recommends that this action be dismissed.
On May 31, 2013, after being granted an extension of time, Petitioner filed
his objections [7] to the R&R. The objections are largely incomprehensible but
appear to assert, for the first time, that Petitioner’s previous § 2255 petition was
“inadequate or ineffective.”
1
Judge Anand noted that Petitioner already has sought, and been denied, § 2255
relief in his sentencing court.
2
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
Petitioner does not object to Judge Anand’s finding that this action may
proceed under 28 U.S.C. § 2241 only if Petitioner demonstrates that a motion
under 28 U.S.C. § 2255 is “inadequate or ineffective.” The Court does not find
any error in this finding. See 28 U.S.C. § 2255(e) (“An application for a writ of
habeas corpus in behalf of a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the court which sentenced
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him, or that such court has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality of his detention.”)
Accordingly, the Court adopts the finding.
Petitioner objects that his previous § 2255 motion was “inadequate or
ineffective.” The Court does not consider this objection because, in reviewing a
magistrate judge’s report and recommendation, the Court does not consider
objections based on arguments not raised before the magistrate judge. See
Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Even if the Court
allowed the objection, it would be overruled because Petitioner’s conclusory
assertion that his prior § 2255 motion was “inadequate or ineffective” does not
satisfy Petitioner’s burden to show why § 2255 relief is not adequate to afford
Petitioner his requested relief. See United States v. Bell, 447 F. App’x 116, 118
(11th Cir. 2011) (explaining that the modification of a sentence can be achieved “if
at all, only under Rule 35 or under 28 U.S.C. § 2255”).
Rule 4 of the Rules Governing Section 2254 Cases provides, “If it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the petition and direct the clerk
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to notify the petitioner.” 28 U.S.C. § 2254 app. R. 4.2 Judge Anand concluded that
Rule 4 requires dismissal of this case because the Petitioner is not entitled to
habeas corpus relief in this Court. Having reviewed the petition and Petitioner’s
objections, the Court agrees with Judge Anand and finds that this case is required
to be dismissed.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [3] is ADOPTED. This action is DISMISSED.
SO ORDERED this 11th day of October, 2013.
2
Rule 1 provides that “[t]he district court may apply any or all of these rules
[governing § 2254 cases] to a habeas corpus case not covered by [§ 2254].” 28
U.S.C. § 2254 app. R. 1(b). The Court concludes that Rule 4 appropriately applies
to this case.
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