Lerma-Duenas v. Atkinson

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION adopting 13 Report and Recommendation, dismissing petition without prejudice and without requiring Respondent to respond. Signed by Honorable R Bryan Harwell on 10/11/2013. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Jorge L. Lerma-Duenas,
Petitioner,
v.
Kenny Atkinson,
Respondent.

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Civil Action No.: 0:13-cv-01076-RBH

ORDER

Petitioner Jorge L. Lerma-Duenas, a federal prisoner proceeding pro se, filed this petition
under 28 U.S.C. § 2241, challenging the adjudication that he violated the terms of his supervised
release and his sixteen-month sentence. The matter is now before the Court for review after the
issuance of the Report and Recommendation (“R&R”) of United States Magistrate Judge Paige J.
Gossett.1 The Magistrate Judge recommends that this Court summarily dismiss Petitioner’s petition
without prejudice because his claims are not cognizable in a § 2241 petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner filed a § 2241 petition in April 2013, challenging the adjudication that he violated
the terms of his supervised release. Pet., ECF No. 1. Specifically, he alleges that the revocation was
in violation of the doctrine of specialty because it was outside of the scope of his extradition from
Mexico.2 Id. at 3-4. The Magistrate Judge issued an R&R on June 21, 2013, recommending that the
petition be dismissed. R&R, ECF No. 13. Petitioner filed timely objections to the R&R. Pet’r’s
Objs., ECF No. 16.

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
2
Because the relevant facts were well-represented in the Magistrate Judge’s R&R, they need not be
repeated in this order.

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Magistrate Judge recommends dismissing Petitioner’s petition without prejudice
because his challenge is not cognizable in a § 2241 petition. Specifically, the Magistrate Judge
concludes (1) that Petitioner is required to challenge his sentence under 28 U.S.C. § 2255, (2) that
Petitioner fails to demonstrate that § 2255 does not provide an “inadequate or ineffective” remedy,
(3) that Petitioner’s claim, regardless, is without merit, and (4) that Petitioner failed to exhaust his
administrative remedies before filing his petition. R&R 3–6. In his objections, Petitioner argues (1)

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that the Court has jurisdiction because he is being held in violation of a United States treaty, (2) that
the sentencing court incorrectly ruled on a courtesy copy of his petition, (3) that the fact the doctrine
of specialty was not raised to the sentencing court does preclude him from raising it because his
counsel was ineffective, and (4) that his imprisonment “is an insult to the American/Mexican
Extradition Treaty and a slap in the fact to every extradited Mexican citizen.” Pet’r’s Objs. 1–4.
Petitioner’s objections, however, are meritless. As the Magistrate Judge noted in her R&R,
challenges to revocations of supervised release must be raised to the sentencing court under § 2255.
R&R 3 (citing Milnes v. Samples, 861 F.2d 265 (4th Cir. 1988) (table opinion)). Petitioner’s
sixteen-month sentence was imposed in the United States District Court for the Southern District of
California, and, thus, Petitioner’s petition is not properly before this Court. Furthermore, Petitioner
makes no showing that § 2255 is an “inadequate or ineffective” remedy, which would entitle him to
take advantage of the statute’s savings clause. 28 U.S.C. § 2255(e). Accordingly, the Magistrate
Judge’s recommendation to dismiss Petitioner’s petition without prejudice is proper, and
Petitioner’s objections are overruled.3
CONCLUSION
The Court has thoroughly reviewed Petitioner’s § 2241 petition, the Magistrate Judge’s
R&R, objections to the R&R, and applicable law.

For the reasons stated above and by the

Magistrate Judge, the Court hereby overrules Petitioner’s objections and adopts the Magistrate
Judge’s R&R.
IT IS THEREFORE ORDERED that Petitioner’s petition is DISMISSED without
prejudice and without requiring Respondent to respond.

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Because this ruling is dispositive of Petitioner’s petition, the Court need not address the remaining
issues raised in the Magistrate Judge’s R&R and the Petitioner’s objections.
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IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
October 11, 2013

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