Trice v. States of Georgia

Filing 14

ORDER RULING ON REPORT AND RECOMMENDATIONS for 12 Motion to Amend/Correct filed by Richard Edward Trice, 13 Motion for TRO filed by Richard Edward Trice, 8 Report and Recommendations. The court, therefore, adopts the recommendation of the Magis trate Judge in full and incorporates this Report by specific reference. Accordingly, the petition is dismissed without prejudice and without issuance andservice of process. Petitioners motion to amend his petition 12 and for a temporary restraining order 13 are also denied. Signed by Honorable Joseph F Anderson, Jr on 01/26/2010. (dsto, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA

R ic h a rd Edward Trice,

) ) Petitioner, ) vs. ) ) S ta te of Georgia, ) ) Respondent. ) _________________________________ )

C /A No. 4:09-2767-JFA-TER

ORDER

P e titio n e r Richard Edward Trice, is a federal prisoner incarcerated at the Federal C o rre c tio n a l Institution in Bennettsville, South Carolina. Although he styles his action as o n e under 28 U.S.C. Section 2241 (allowing federal prisoners to challenge the execution of th e ir federal sentences), the petition actually challenges his prior Georgia State sentence. T h e Magistrate Judge assigned to this action 1 has prepared a comprehensive Report an d Recommendation wherein he recommends that habeas relief should be denied for failure to state a claim for relief. The Report sets forth in detail the relevant facts and standards of la w on this matter, and the court incorporates such without a recitation and without a hearing. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n and he has done so within the time limits prescribed. He has also filed a m o tio n for a temporary restraining order and a motion to amend his petition. T h e petitioner was convicted in Georgia State court of various offenses in 1991. He

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The M a g i s tr a te Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the r e s p o n s i b i l it y to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and t h e court may accept, reject, or modify, in whole or in part, the recommendation of the M a g i s t r a t e Judge, or recommit th e matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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a r g u e s that these convictions were invalid for lack of subject matter jurisdiction and because s la v e ry has been abolished. He is now serving a federal sentence in South Carolina for p o s s e s s i o n of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). P e titio n e r does not allege that his federal sentence is illegal or that his sentence has b e e n miscalculated or is otherwise improperly executed such that he may seek sentencing c re d it under Section 2241. Rather, petitioner contends that his state time served in Georgia s h o u ld be counted toward his federal sentence. The Magistrate Judge correctly opines that p e titio n e r has failed to allege any grounds for which this court may grant relief under Section 2 2 4 1 and that the petition should be dismissed. In his objections to the Report and Recommendation, the petitioner contends that the S tate of Georgia violated his due process rights with regard to his indictment and his guilty p l e a in state court. He also raises claims of ineffective of assistance of state counsel and jury d is c rim in a tio n . Such claims are not cognizable under this action under Section 2241. T h e petitioner has filed a motion for an emergency temporary restraining order re g a rd i n g the taking of his Hindu religious materials and legal documents. Petitioner c o n ten d s that the denial of his legal property by the Warden in retaliation for his tort claim f ie ld in December 2008 is in violation of his constitutional rights. Petitioner has also filed, post-Report and Recommendation, a motion to amend his S e c tio n 2241 petition contending that his state jury in Georgia was subject to "petty jury bias, a ll white bias." He again asserts that his Georgia State counsel was ineffective and could h a v e transferred his state charges to federal court, and as a result of this failure, his 1991 plea

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a n d sentence in state court are unconstitutional. A s the Magistrate Judge has correctly states, to the extent that petitioner's claims may b e construed to challenge his state criminal conviction, the proper vehicle for such an action lie s in 28 U.S.C. Section 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). A f te r carefully reviewing the applicable law, the record in this case, the Report and R ec o m m en d a t io n , and the objections thereto, the court finds the Magistrate Judge's re c o m m e n d a tio n fairly and accurately summarizes the facts and applies the correct principles o f law. The court, therefore, adopts the recommendation of the Magistrate Judge in full and in c o rp o ra te s this Report by specific reference. Accordingly, the petition is dismissed without prejudice and without issuance and s e rv ic e of process. Petitioner's motion to amend his petition and for a temporary restraining o rd e r are also denied. IT IS SO ORDERED.

J a n u a r y 26, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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