McElhaney v. Bear et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 9 of Magistrate Judge Bernard M. Jones...grounds one and two of the petition are dismissed without prejudice and grounds three and four of the petition are dismissed with prejudice. Signed by Honorable Joe Heaton on 2/16/2018. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALBERT McELHANEY,
Petitioner,
vs.
BEAR, et al.,
Respondent.

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NO. CIV-18-30-HE

ORDER
Petitioner Albert McElhaney, a state prisoner appearing pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to U.S.
Magistrate Judge Bernard M. Jones for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B) and (C). Judge Jones conducted a preliminary review of the petition pursuant
to Rule 4, Rules Governing Section 2254 Cases, made applicable to § 2241 cases by Rule
1(b). Judge Jones has issued a Report and Recommendation (the “Report”) recommending
that the petition be denied. Petitioner has filed an objection to the Report, which triggers
de novo review by this court.
The Report recommends that grounds one and two of the petition be dismissed
because they do not challenge the execution of his sentence or the nature of his
confinement. The Report concludes that grounds one and two are actually directed at
petitioner’s conviction for his underlying offenses. Such claims, as the Report notes, may
be appropriate in a § 2254 action, but they fail to establish a basis for relief under § 2241.

The Report recommends that grounds three and four of the petition be dismissed because
they were raised and rejected in petitioner’s prior § 2241 action.
Petitioner’s objection to the Report argues, in various iterations, 1 that the court is
mandated to bring him before the court for an inquiry to determine why he is detained, by
whom he is detained, and whether his detention violates any applicable law or
constitutional standard. 2 But the court does not have a mandatory duty to bring every §
2241 petitioner before the court to air their grievances and areas of concern. Section 2241
states that “[w]rits of habeas corpus may be granted by . . . district courts” not that they
must be granted. 28 U.S.C. § 2241(a). Petitioner also argues, based on unidentifiable
sources, that his prior habeas action decision was rendered void and that, because grounds
three and four in his current petition were not heard on their merits in the prior action, they
may be raised in this new application. After de novo review, the court concludes that
neither of petitioner’s objections raises a valid challenge to the Report.

1

Within his objection, petitioner states in part: “this court has a non-discretionary,
constitution and Congress [sic] mandated duty to ‘writ’ petitioner before this court for ‘inquiry’”;
the §2241 “application clearly states at the mandatory habeas hearing, everything will be
expanded and proven”; “Rule (4) can not avoid this sworn constitutional duty under the
Constitution mandating the court writ petitioner before this court and conduct the ‘inquiry’”; the
cites “the magistrate uses can not deny due process and equal protection of law rights of
congressional acts, and the constitution to writ the applicant before the court before the court can
have jurisdiction to grant or deny relief (28 U.S.C. § 1651 and 28 U.S.C. § 2241).”
2

Because petitioner appears pro se, his pleadings are construed liberally, but “the court
cannot take on the responsibility of serving as the litigant’s attorney in construing arguments and
searching the record.” Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (citation omitted).

2

Accordingly, because the court concludes that petitioner’s grounds one and two are
not properly raised in a § 2241 action, Leatherwood v. Allbaugh, 861 F.3d 1034, 1041-42
(10th Cir. 2017), and because it is proper to decline to consider grounds previously raised
and adjudicated in an earlier habeas proceeding unless the court determines that hearing
the claims would serve the ends of justice, Stanko v. Davis, 617 F.3d 1262, 1269 (10th Cir.
2010), the court ADOPTS the Report and Recommendation [Doc. #9]. Grounds one and
two of the petition are DISMISSED without prejudice and grounds three and four of the
petition are DISMISSED with prejudice.
IT IS SO ORDERED.
Dated this 16th day of February, 2018.

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