Donato v. Warden of United States Penitentiary Allenwood, PA et al

Filing 22

MEMORANDUM AND ORDER: 1) The court adopts the r and r 16 of the mj.2) The amended petition for a writ of habeas corpus pursuant to 42U.S.C. § 2241 (Doc. 14) is DISMISSED.3) This court declines to issue a certificate of appealability.4) The Clerk of Court shall close the file.Signed by Honorable Sylvia H. Rambo on 01/18/13 (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CARLO DONATO,

:
:
Petitioner
:
:
v.
:
:
WARDEN OF THE UNITED STATES :
PENITENTIARY AT ALLENWOOD, :
PENNSYLVANIA and UNITED
:
STATES ATTORNEY GENERAL,
:
:
Respondent s
:

CIVIL NO. 1:CV-12-0618
(Judge Rambo)
(Magistrate Judge Mannion1)

MEMORANDUM

Before the court is a November 15, 2012 report of Magistrate Judge
Mannion (Doc. 16) in which he recommends that the pro se petition for writ of
habeas corpus filed by Carlo Donato pursuant to 28 U.S.C. § 2241 be dismissed.
The magistrate judge notified Donato that he had an opportunity to recharacterize his
petition as one pursuant to § 2255 but Donato elected not to do so. The petition was
given preliminary consideration pursuant to Rule 4 governing Section 2255 cases, as
made applicable to § 2241 cases by Rule 1 thereof. See 28 U.S.C. foll. 2255. After
being granted an extension of time, Donato filed objections to the report and
recommendation.
The magistrate judge noted that in order to bring a § 2241 petition for a
writ of habeas corpus, the petition must establish that the remedy by a § 2255 motion

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district.

Judge Mannion has recently been elevated to a United States District Judge within this

is inadequate or ineffective to test the legality of his detention. A section 2255
proceeding is not ineffective or inadequate because an individual has been unable to
obtain relief under that provision, or because an individual is procedurally barred
from filing a § 2255 motion, or that he is unable to meet the stringent gatekeeping
requirements of § 2255. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539
(3d Cir. 2002).
Donato clearly states he previously challenged his conviction and
sentence under § 2255 in March of 1998. (Doc. 14 at 2.) He further states that the
district court denied his petition; however, on appeal his sentence was recalculated.
(Id. at 3.) On September 24, 2006, the petitioner filed a motion for a writ of habeas
corpus pursuant to § 2241. (Id.) The United States District Court for the Eastern
District of New York characterized the filing as a successive § 2255 petition and
denied the petition. (Id.) The Second Circuit Court Court of Appeals denied the
petitioner’s subsequent appeal. (Id. at 4.)
The petitioner has indicated to the court that he wishes to proceed
pursuant to § 2241. Nevertheless, the petitioner is attacking the conduct of his
criminal trial, which must be brought pursuant to § 2255. A review of the petition
supports the magistrate judge’s finding that the petition constitutes a challenge to his
conviction and, therefore, must be brought pursuant to § 2255. Furthermore, the
record indicates that petition would be barred from now raising a § 2255 petition.
On December 25, 2012,2 Donato filed objections to the report and
recommendation (Doc. 20). The objections were supplemented by an affidavit (Doc.
21). All of the objections cite to errors in his trial proceedings – the same issues

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This date is the date of mailing.
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raised in Donato’s § 2241 petition. This court agrees with the magistrate judge that
all of Donato’s allegations constitute a challenge to his conviction and sentence and
therefore such must be brought under § 2255. An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: January 18, 2013.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CARLO DONATO,

:
:
Petitioner
:
:
v.
:
:
WARDEN OF THE UNITED STATES :
PENITENTIARY AT ALLENWOOD, :
PENNSYLVANIA and UNITED
:
STATES ATTORNEY GENERAL,
:
:
Respondent s
:

CIVIL NO. 1:CV-12-0618
(Judge Rambo)
(Magistrate Judge Mannion3)

ORDER
For the reasons set forth in the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1) The court adopts the report and recommendation of the magistrate
judge.
2) The amended petition for a writ of habeas corpus pursuant to 42
U.S.C. § 2241 (Doc. 14) is DISMISSED.
3) This court declines to issue a certificate of appealability.
4) The Clerk of Court shall close the file.
s/Sylvia H. Rambo
United States District Judge
Dated: January 18, 2013.

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district.

Judge Mannion has recently been elevated to a United States District Judge within this