Fellove v. Wells

Filing 6

ORDER adopting 3 Report and Recommendations. Therefore, the instant petition is Dismissed and this civil action is Closed. Signed by Judge Dudley H. Bowen on 4/2/13. (cmr)

OR
IGINAL
IN THE I]NITED STATESDISTRICTCOURT
DISTRICTOF GEORGIA
FOR THE SOUTHERN
DUBLIN DIVISION

ut oXitilii- ,,
,i;
-2
I;l: fiPR Pti3:2
0Ft,,i.

DAMIS FELLOVE,
Petitioner,

cv 313-009
WALT WELLS, Warden,
Respondent.

ORDER

After a carefui, de novo revtew of the file, the Courl concurs rvith the Magistrate
("R&R"), to which objectionshave been filed (doc.
Judge'sReporl and Recommendation
no. 5). Petitioner was convicted on one count of conspiracyto possessfive kilograms or
more ofcocaine with the intent to distribute,and one count ofusing, carrying,or possessing
a firearm during and in relation to a federaldrug trafficking crime. Petitioner commenced
the
this casepursuantto 28 U. S.C. { 2241,but challenged validity, ratherthan the execution,
of his sentence. (See doc, no. 1.) In particular, Petitioner arguedthat the "affidavit" of
Ronald Burch, his co-defendantin his criminal trial, specifically exoneratedhim of any
culpability for the crimes for which he was convicted,and that he was additionally coerced
into pleading guiltybyhis trial counsel. (!d. at 1-7.) The MagistrateJudgerecommended
dismissal of the petition, reasoningthat Petitioner's claims were not properly brought
pursuant to $ 2241 and that he had not successfullyinvoked the "savings clause" of 28
U.S.C. $ 2255 that might allow for suchrelief under$ 2241. (Doc. no. 3.)

that the claims setfofih in his $ 224 | petition
In his obj ections,Petitionerfirst argues
would not be procedurallydefaultedifbrought in a $ 2255 motion; in particular,Petitioner
to
references "causeard prejudice" and "fundamentalmiscamageofjustice" exceptions
the
proceduraldefault that apply to $ 2255 motions. (Doc. no. 5, p. 1.) Petitioner additionally
to
his
that an evidentiaryhearingis rvarranted address claim ofactual innocence.(Id.
asserts
rvasnot that Petitioner's
at 2.) However,the crux ofthe MagistrateJudge'srecommendation
claims would be procedurally defaulted if brought pursuant to $ 2255, but instead that
Petitioner's claims are improperly brought in a & 2241 petition, and that, based on
Petitioner's prior filings, the instant I 2241 petition constitutes an improper attempt to
or
the
on
circumvent restdctions filing second successive 2255motions. (Doc.no.3,pp.
$
4-5.) To the extentthat Petitionerbelieveshis claims arenot subjectto proceduraldefault
and would be properly brought in a $ 2255 motron, he is welcome to attempt to resubmit
thoseclaims in the proper coufi pursuantto such a motion.
Moreover, Petitioner's insistentreliance on the deficient "affidavit" as a sourceof
is
exoneration
and an indication ofhis actualinnocence misguided. As the MagistrateJudge
pointed out, the letter that Petitionerrefersto as an affidavit doesnot contain the requisite
componentsof an affidavit (doc. no. 3, pp. 2, 5); additionally, Petitioner's failed efforts to
acquirea "notarized version" of the letter from Mr. Burch do nothing to affect the letter's
validity (doc. no. 5, pp. 2, 4). Regardless, the Magistrate Judge also made clear (!gQ
as
generallvdoc. no. 3), Petitionerdid not successfully
openthe portal to a $ 2241proceeding,
and thus the validity of the letter as an affidavit is wholly irrelevantto the instant case. An
evidentiaryhearing on the issueofPetitioner's actual innocenceis improper for the same

reason,and the Courl accordingly declines to grant the same. Any other objections not
herein arelikeu"isewithout merit and do not warrantdepartingfrom the
explicitly addressed
conclusionsin the R&R. Thus. Petitioner's obiectionsare OVERRULED.

Accordingly, Report Recommendation Magistrate
and
the
ofthe
Judge ADOPTED
is
the
as the opinionof the Courl. Therefore, instantpetitionDISMISSED, andthis civil
action is CLOSED.

SO ORDERED
thiq/ -"dayofAprll,2013, at Augusta,
Georgia.

3