Wedington v. Holder et al

Filing 12

ORDER denying petitioner's 3 Motion for Appointment of Counsel; adopting Magistrate Judge's 6 Report and Recommendation; denying petitioner's 2 Motion for leave to proceed in forma pauperis (Written Opinion). Signed by Judge John R. Tunheim on November 9, 2012. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CALVIN SCOTT WEDINGTON,

Civil No. 12-2474 (JRT/FLN)

Petitioner,
v.
ERIC HOLDER, Attorney General, and
JANET RENO,

ORDER ADOPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE

Respondents.

Calvin Scott Wedington, #18915-037, Federal Medical Center, PMB 4000,
Rochester, MN 55904, plaintiff pro se.
Ann M. Bildsten, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, 600 United States Courthouse, 300
South Fourth Street, Minneapolis, MN, 55415, for respondents.
This matter is before the Court on petitioner’s objections to a Report and
Recommendation issued by United States Magistrate Judge Franklin L Noel on
October 10, 2012. The Court has reviewed de novo the portions of the Report and
Recommendation to which the petitioner objects. 28 U.S.C. § 636(b)(1) and D. Minn.
Local Rule 72.2(b).

For the reasons outlined below, the Court will overrule the

objections and adopt the Report and Recommendation.1

1

The full factual background of this matter is set forth in the Report and
Recommendation of the Magistrate Judge.

UMFKC

Petitioner is an inmate at the Federal Medical Center in Rochester, Minnesota.
Petitioner seeks a writ of habeas corpus that would cause him to be released from
custody. (Habeas Corpus Petition, Sept. 26, 2012, Docket No. 1.)
Petitioner’s objections to the Report and Recommendation take issue with the
application of Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts to his habeas petition, which was brought under 28 U.S.C. § 2241. Rule 4
provides, in relevant part, “If it plainly appears from the [habeas] petition…that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition…” As the Magistrate Judge explained, the Rules Governing Section 2254 Cases
may be applied to habeas petitions brought under 28 U.S. § 2241 in addition to cases
brought under 28 U.S.C. § 2254. Rule 1(b); Mickelson v. United States, Civ. No. 011750, 2002 WL 31045849 at *2 (D. Minn. Sept. 10, 2002); Bostic v. Carlson, 884 F.2d
1267, 1270, n.1, (9th Cir. 1989). The Court therefore finds no error in the Magistrate
Judge’s application of the Rules Governing Section 2254 Cases.2

ORDER
Based upon all of the files, records, and proceedings herein, the Court
OVERRULES petitioner’s objections [Docket No. 7] and ADOPTS the Report and
Recommendation of the Magistrate Judge [Docket No. 6]. IT IS HEREBY ORDERED
that:
2

While the Court interprets petitioner’s objections to take issue only with the application
of the Rules Governing Section 2254 Cases, the Court has carefully reviewed the entirety of the
Magistrate Judge’s Report and Recommendation and finds, as the Magistrate Judge did, that
petitioner failed to present a colorable claim for relief.
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1.

Petitioner’s application for leave to proceed in forma pauperis [Docket

No. 2] is DENIED.
2.

Petitioner’s motion for appointment of counsel [Docket No. 3] is DENIED.

3.

This action is summarily DISMISSED without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: November 9, 2012
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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