Hankerson v. Drew et al
Filing
6
OPINION AND ORDER adopting 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
CLEVELAND HANKERSON,
Petitioner,
v.
1:13-cv-1790-WSD
DARLENE DREW, Warden, and
UNITED STATES
PENITENTIARY, Atlanta, Georgia,
Respondents.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [3] (“R&R”).
I.
BACKGROUND
On May 28, 2013, Petitioner Cleveland Hankerson (“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 Middle District of
Georgia. He specifically challenges the “career offender” enhancement imposed
by the sentencing court.
On June 19, 2013, Magistrate Judge King issued her R&R after reviewing
the petition under Rule 4 of the Rules Governing Section 2254 Cases. Judge King
found that Petitioner has filed two previous habeas petitions: (1) in 2006, he filed a
§ 2255 motion in the Middle District of Georgia, challenging his convictions; and
(2) in 2011, he filed a § 2241 petition in this Court in which he challenged, as he
does here, the “career offender” finding and its impact on his sentencing.1 Both
previous petitions were denied. Noting that successive § 2241 petitions are not
permitted, Judge King concluded that this action is required to be dismissed.
On June 27, 2013, Petitioner filed his objections [5] to the R&R. In the
objections, Petitioner advances arguments on the merits of his petition. He does
not address Judge King’s finding that this action is required to be dismissed as a
successive petition.
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
1
In his previous § 2241 petition, Petitioner argued that a prior driving-under-theinfluence conviction should not have been considered in finding he was a career
offender. In this petition, Petitioner argues that his aggravated battery conviction
should not have been considered.
2
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 King’s finding that this action must be
dismissed because it is a successive § 2241 petition. The Court does not find plain
error in this finding. See 28 U.S.C. § 2244(a) (“No circuit or district judge shall be
required to entertain an application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the United States if it
appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus . . . .”); see
also Antonelli v. Warden, 542 F.3d 1348, 1352 (11th Cir. 2008) (holding that,
under 28 U.S.C. § 2244(a), “[s]uccessive § 2241 petitions by federal prisoners are
3
subject to threshold dismissal in the district court”). Accordingly, the Court adopts
the R&R.2
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation [3] is ADOPTED. This action is DISMISSED.
SO ORDERED this 11th day of October, 2013.
2
As noted above, Petitioner’s objections to the R&R do not address any of the
specific findings or recommendations. The objections are not valid and do not
affect the Court’s conclusions. See Marsden v. Moore, 847 F.2d 1536. 1548 (11th
Cir. 1988) (“Parties filing objections to a magistrate’s report and recommendation
must specifically identify those findings objected to. Frivolous, conclusive, or
general objections need not be considered by the district court.”). Accordingly,
the objections are overruled.
4
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