Falice v. United States of America

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION 4 of Magistrate Judge Bernard M. Jones...this case is dismissed. Signed by Honorable Joe Heaton on 12/9/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

REGINALD A. FALICE,

Petitioner,
NO. CIV-16-1204-HE

V.

UNITED STATES OF AMERICA,

Respondent.

ORDER

Petitioner Reginald Falice brought this action challenging his 2000 conviction and
sentence in the United States District Court for the Western District of North Carolina.

This court referred the case to U.S. Magistrate Judge Bernard Jones for initial

proceedings consistent with 28 U.S.C. §636(b)(l)(B) & (C). Following initial screening
pursuant to 28 U.S.C. § 1915A, Judge Jones issued a report and recommendation [Doc.
#4] recommending dismissal of the petition. The recommendation was based on, among

other things, a determination that plaintiffs claims are, in substance, a motion for relief
under 28 U.S.C. § 2255 and are therefore brought in the wrong court. Judge Jones also

concluded that plaintiffs § 2255 motion was "second and successive" and filed without
authorization from the appropriate court of appeals. Plaintiff has filed a response and

objection to the report and recommendation, which triggers a de novo review by this
court of any proposed findings or recommendations to which objection is made.
U.S.C. § 636(b)(1).

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Having conducted the necessary de novo review, the court concludes the report
and recommendation should be adopted insofar as it concludes plaintiff s claims are, in

substance, a § 2255 motion and therefore filed in the wrong court. The allegations of the
complaint are unclear, confusing, and somewhat bizarre, but the court concludes they are
most plausibly construed as a challenge to the validity of his conviction and sentence.

They are therefore appropriately viewed as a § 2255 motion and must be brought in "the
court which imposed the sentence...." 18 U.S.C. § 2255(a); Brace v. United States, 634
F.3d 1167, 1169 (10th Cir. 2011). That is the Western District of North Carolina, not this
court.

In light of this conclusion, it is unnecessary to consider the additional grounds for
dismissal identified in the report.

The report and recommendation [Doc. #4] is therefore ADOPTED to the extent
indicated and this case is DISMISSED.
IT IS SO ORDERED

Dated this ^f^ay ofDecember, 2016.

JO^HEATpN
CmSF U.l DISTRICT JUDGE