Anthony v. Fox

Filing 8

ORDER adopting Report and Recommendations re 6 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 7/21/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD ANTHONY,
Petitioner,
v.
JOHN B. FOX,
Respondent.

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Case No. CIV-16-576-D

ORDER
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 6] issued July 7, 2016, by United States Magistrate Judge Shon T. Erwin. Judge Erwin
construed the Petition [Doc. No. 1] as one for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, and recommends it be dismissed for lack of jurisdiction.1 Pursuant to 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b)(2), Petitioner objects to the Report and Recommendation
on the ground that “Petitioner did not file a [§] 2254 [petition]. [Rather], Petitioner filed a
motion under 28 U.S.C. [§] 2241.” Pet’r’s Obj. [Doc. No. 7] at 1. The Court, having
conducted a de novo review of the record,2 finds Petitioner’s Objection should be overruled,
and the Report and Recommendation should be adopted.

1

Although titled “Habeas Corpus Petition to Vacate, Set [A]side, or Correct Sentence,” the Petition
fails to specify the statutory provision under which it is brought. Pet. [Doc. No. 1] at 1.
2

Pursuant to Fed. R. Civ. P. 72(b)(3), where the district court refers dispositive matters to a
magistrate judge for a report and recommendation, the district court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Id.; Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1246 (10th Cir. 2015).

The Court disagrees with Petitioner’s contention that he can properly bring this action
under 28 U.S.C. § 2241.3 Although “Petitioner is currently in the custody of the Federal
Bureau of Prisions[,] . . . .[h]e is not . . .challenging his federal conviction.”4 R. & R. [Doc.
No. 6] at 1. Instead, Petitioner explicitly seeks to overturn his state conviction by “ask[ing]
that this Court [o]rder [P]etitioner’s Tennessee [s]tate conviction void ab initio.” Pet’r’s Obj.
[Doc. No. 7] at 3. The proper vehicle to pursue a writ of habeas corpus regarding a state
conviction is 28 U.S.C. § 2254. As correctly set forth in Judge Erwin’s Report and
Recommendation, the Court lacks jurisdiction to review Petitioner’s state court criminal
conviction.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 6]
is adopted in its entirety.
IT IS SO ORDERED this 21st day of July, 2016.

3

“The principal purpose of a § 2241 application is to challenge the execution, rather than the validity,
of a federal prisoner’s sentence.” Hale v. Fox, No. 14-1294, 2016 WL 390256, at *2 n.2 (10th Cir. July 19,
2016) (citing Cleaver v. Maye, 773 F.3d 230, 232 (10th Cir. 2014), cert. denied, 135 S. Ct. 1865, 191 L. Ed.
2d 755 (2015) (noting “a § 2241 petition generally cannot be used to challenge the validity of the underlying
conviction”).
4

Insofar as Petitioner is attempting to challenge his federally imposed sentence, the Court agrees with
Judge Erwin’s analysis. “To the extent Petitioner seeks to challenge the enhancement of his federal sentence
as a result of the state conviction, the proper vehicle for doing so would be to file a 28 U.S.C. § 2255 petition
to vacate, set aside, or correct the sentence in the federal district court that imposed the sentence.” R. & R.
[Doc. No. 6] at 5 (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see also Hale, supra note 2,
at *1-2.

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