Johnson v. Ebbert
ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS HEREBY ORDERED that Chief Magistrate Judge Susan E. Schwab's 8 Report and Recommendation is ADOPTED IN ITS ENTIRETY; Ja'Donavan O'Bryant Johnson's 1 Petition for Writ of Habeas Corpus is DISMISSED for lack of jurisdiction; and the Clerk of Court is directed to close this case. Signed by Honorable Matthew W. Brann on 2/8/2018. (jr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(Chief Magistrate Judge Schwab)
FEBRUARY 8, 2018
Before the Court for disposition is a Report and Recommendation filed by
Chief Magistrate Judge Susan E. Schwab on October 24, 2017.1 In this Report,
Chief Magistrate Judge Schwab recommended that (1) Ja’Donavan O’Bryant
Johnson’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 be dismissed
for lack of jurisdiction, and (2) the Clerk be directed to close this case.2 No
objections to this Report have since been filed.
Upon designation, a magistrate judge may “conduct hearings, including
evidentiary hearings, and . . . submit to a judge of the court proposed findings of
fact and recommendations.”3 Once filed, this Report and Recommendation is
ECF No. 8.
28 U.S.C. § 636(b)(1)(B).
disseminated to the parties in the case who then have the opportunity to file written
objections.4 Where no objection is made to a report and recommendation, the
court should, as a matter of good practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.”5 Nevertheless,
whether timely objections are made or not, the district court may accept, reject or
modify, in whole or in part, the findings or recommendations made by the
Following independent review of the record, I am satisfied that the Report
and Recommendation contains no legal error, and Petitioner’s Section 2241
petition must be dismissed for lack of jurisdiction. The Third Circuit recently
explained that two conditions must be satisfied to permit access to 28 U.S.C. §
2241 under the savings clause of 28 U.S.C. § 2255(e):
First, a prisoner must assert a “claim of ‘actual innocence’ on the
theory that ‘he is being detained for conduct that has subsequently
been rendered non-criminal by an intervening Supreme Court
decision’ and our own precedent construing an intervening Supreme
Court decision”—in other words, when there is a change in statutory
caselaw that applies retroactively in cases on collateral review. And
second, the prisoner must be “otherwise barred from challenging the
legality of the conviction under § 2255.” Stated differently, the
prisoner has “had no earlier opportunity to challenge his conviction
28 U.S.C. § 636(b)(1).
Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.
for a crime that an intervening change in substantive law may
Here, Petitioner does not argue that a change in statutory law has rendered
him actually innocent of his crime of conviction, but rather that, because some of
his prior convictions were classified as violent felonies under the residual clause of
the ACCA, his underlying criminal sentence is unconstitutional and must be
vacated. Such a challenge does not fall within the safety valve exception of In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997), and the instant petition must be
dismissed.8 However, like in the Report and Recommendation, I note that this
dismissal does not preclude Petitioner’s right to pursue this sentencing argument
by requesting permission from the United States Court of Appeals for the Fourth
Circuit to file a second or successive Section 2255 motion pursuant to 28 U.S.C. §
AND NOW, therefore, IT IS HEREBY ORDERED that:
1. Chief Magistrate Judge Susan E. Schwab’s Report and Recommendation
(ECF No. 8) is ADOPTED IN ITS ENTIRETY;
2. Ja’Donavan O’Bryant Johnson’s Petition for Writ of Habeas Corpus (ECF
No. 1) is DISMISSED for lack of jurisdiction; and
Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017).
See Report and Recommendation (ECF No. 14) at 6-7 (collecting cases).
Id. at 8.
3. The Clerk of Court is directed to close this case.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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