Cross v. Cruz

Filing 17

ORDER ACCEPTING 11 REPORT AND RECOMMENDATION. Petitioner's motion for relief pursuant to § 2241 is denied. This action is dismissed without prejudice. Petitioner's 16 Motion to Appoint Counsel is denied as moot. Signed by Chief Judge Terry L Wooten on 7/2/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Paul Cross,

C/A No. 1:14-cv-00089-TLW
PETITIONER

v.

Order

M. Cruz, Warden FCI Williamsburg,
RESPONDENT

Petitioner Paul Cross, proceeding pro se, submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging a sentence imposed on him in the Southern District of
Florida. The matter now comes before the Court for review of the Report and Recommendation
(“Report”) filed on March 6, 2014 by Magistrate Judge Hodges, to whom this case was assigned.
(Doc. #11.) In the Report, the Magistrate Judge recommends dismissing the petition without
prejudice. The basis of this recommendation is that Petitioner’s claim is not properly raised in a
§ 2241 habeas petition and cannot be saved by § 2255’s savings clause.

Petitioner filed

objections on March 26, 2014. (Doc. #15.) This matter is now ripe for decision.
In reviewing the Magistrate Judge’s recommendation, the Court applies the following
standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections . . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case the Court is free, after review, to accept, reject, or modify any of the
1

magistrate judge's findings or recommendations.
Wallace v. Hous. Auth. of City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and the objections, for the reasons stated
by the Magistrate Judge, the Report is ACCEPTED.

Petitioner’s objections are

OVERRULED. Petitioner’s motion for relief pursuant to § 2241 is DENIED. This action is
hereby DISMISSED WITHOUT PREJUDICE.
Petitioner has also filed a Motion for Appointment of Counsel. (Doc. #16.) In light of
the Court’s ruling above, this motion is DENIED AS MOOT.
IT IS SO ORDERED.1
s/ Terry L. Wooten
Terry L. Wooten
Chief United States District Judge
July 2, 2014
Columbia, South Carolina

1

Unlike in a § 2254 or § 2255 proceeding, it is not necessary for a petitioner to obtain a
certificate of appealability to appeal an order dismissing a § 2241 petition. Sanders v. O’Brien,
376 F. App’x 306, 307 (4th Cir. 2010).
2