Richard v. Fox

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 7 and dismissing this case without prejudice for lack of jurisdiction. Signed by Honorable Vicki Miles-LaGrange on 4/19/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KYLE RICHARD,
Petitioner,
vs.
JOHN B. FOX, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. CIV-17-1126-M

ORDER
On March 26, 2018, United States Magistrate Judge Charles B. Goodwin issued a Report
and Recommendation in this action brought pursuant to 28 U.S.C. § 2241, seeking a writ of habeas
corpus. The Magistrate Judge recommended that the Petition for Writ of Habeas Corpus be
dismissed without prejudice for lack of jurisdiction. Petitioner was advised of his right to object
to the Report and Recommendation by April 16, 2018. On April 3, 2018, petitioner filed his
objections.
In his objections, petitioner objects to the Magistrate Judge’s finding that he is time-barred
from bringing a § 2255 motion. Petitioner asserts that because the Supreme Court’s opinion in
Dean v. United States, 137 S. Ct. 1170 (2017), was decided on April 3, 2017, pursuant to 28 U.S.C.
§ 2255(f)(3), he had one year from that date to proceed with a § 2255 motion. Section 2255(f)(3)
provides that the 1-year period of limitations shall run from “the date on which the right asserted
was initially recognized by the Supreme Court and made retroactively applicable to cases on
collateral review”. 28 U.S.C. § 2255(f)(3). However, the Supreme Court did not expressly make
Dean retroactively applicable to cases on collateral review, and courts that have considered this
issue have concluded that Dean is not retroactively applicable to cases on collateral review. See
United States v. Wilcoxson, No. 3:10-cr-00487-BR, 2018 WL 912253, at *3 (D. Or. Feb. 15, 2018)

(listing cases). Accordingly, the Court finds that § 2255(f)(3) would not apply and that petitioner
is time-barred from bringing a § 2255 motion.
Accordingly, upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 7] issued by the
Magistrate Judge on March 26, 2018, and

(2)

DISMISSES this case without prejudice for lack of jurisdiction.

IT IS SO ORDERED this 19th day of April, 2018.