Chisena v. Mansukani et al

Filing 39

ORDER RULING ON REPORT AND RECOMMENDATION: After de novo review of the record, the applicable law, the Report of the Magistrate Judge, and Petitioner's objections, the Court finds no error. Accordingly, the Cour t overrules Petitioner's objections and adopts and incorporates the Report (ECF No. 16 ) by reference into this Order. It is therefore ORDERED that Petitioner's § 2241 petition is DISMISSED without prejudice and without requiring the respondent to file a return. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 8/8/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Dale Chisena,

)
)
Petitioner, )
)
v.
)
)
Warden Mansukani,
)
)
Respondent. )
_________________________________ )

Civil Action No. 5:17-753-BHH

ORDER

Petitioner Dale Chisena (“Petitioner”), a federal prison inmate proceeding pro se,
filed this habeas relief action pursuant to 28 U.S.C. § 2241. (ECF No. 1.) The matter is
before the Court for review of the Report and Recommendation (“Report”) of United States
Magistrate Judge Kaymani D. West, made in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(c) D.S.C. On May 30, 2017, Magistrate Judge West issued a
Report recommending that the Court summarily dismiss the petition without prejudice. (ECF
No. 16 at 3, 5.) The Report sets forth in detail the relevant facts and standards of law on
this matter and the Court incorporates them without recitation.
BACKGROUND
Petitioner filed this action pursuant to § 2241, asserting that he is entitled to habeas
corpus relief because his rights under the Sixth Amendment to the U.S. Constitution were
violated by his plea counsel, who failed to file a direct appeal despite Petitioner’s request
that he do so, and by subsequent counsel, who failed to timely file Petitioner’s motion to
vacate, set aside, or otherwise correct his sentence pursuant to 28 U.S.C. § 2255. (ECF
No. 1.) In the § 2241 petition, Petitioner asks the Court to grant him a belated direct appeal
and “restoration of ability to challenge conviction collaterally if unsuccesfully [sic] at the

appellate level.” (Id. at 10.)
In her Report, Magistrate Judge West explains that the § 2241 petition is subject to
summary dismissal because Petitioner’s allegations of ineffective assistance of plea
counsel and § 2255 counsel go to the underlying validity of his conviction rather than the
manner of execution of his sentence, which is the most commonly accepted subject matter
for petitions filed pursuant to § 2241. (ECF No. 11 at 3.) The Magistrate Judge advised
Plaintiff of the procedures and requirements for filing objections to the Report and the
serious consequences if he failed to do so. (Id. at 6.) On June 12, 2017, the Court entered
a Text Order (ECF No. 22) granting Petitioner’s motion for additional time to file objections
(ECF No. 21). On July 12, 2017, the time to file objections having expired, the Court
entered an Order adopting the Report and dismissing this case without prejudice. (ECF No.
27.) However, Petitioner’s objections to the Report were docketed the following day, July
13, 2017 (ECF No. 30), and subsequent review of the file revealed that the objections were
timely submitted to the mail room at FCI Estill. Accordingly, the Court vacated its prior
Order and reinstated the case for consideration of Petitioner’s timely submitted objections.
(ECF No. 31.) The Court has reviewed the record, the relevant law, and the objections, but
finds the objections to be without merit. Therefore, it will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and 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 Report
to which specific objection is made, and the Court may accept, reject, or modify, in whole
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or in part, the recommendation of the Magistrate Judge, or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1). However, the Court need not conduct a de novo
review when a party makes only “general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
Magistrate Judge West found that the instant § 2241 petition includes essentially the
same arguments and claims about the underlying validity of Petitioner’s convictions that he
unsuccessfully made to the sentencing court and the Sixth Circuit in connection with his
initial § 2255 motion. (ECF No. 16 at 3.) That § 2255 motion was denied as untimely, a
certificate of appealability was denied, and the Sixth Circuit denied Petitioner’s request for
authorization to file a successive § 2255 motion. (Id. at 1-2.)
Petitioner’s objections consist of a generalized argument that the sentencing court
and the Sixth Circuit have deprived him of his Sixth Amendment right to constitutionally
competent counsel by enforcing the procedural requirements applicable to his filings. He
writes:
In petitioners case the protections afforded by the courts to file and proceed
utilizing motion 2255 petition have been consistently denied and
unconstitutional limited by actions directly related to actions by legal counsel;
were not for these actions an issue of merit could have been determined. It
is Petitioner’s contention that the execution of his sentence should be
contingent upon his having had access and review to all of the
constitutionally allowed stages of criminal procedure, and that a finalize
sentence should have been allowed review by the appellate courts for review
of error. None of these steps were allowed due to a denial of constitutional
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rights that has been allowed to stand by the lower courts.
(ECF No. 30 at 2 (errors in original).) Petitioner makes no specific objection to the
Magistrate Judge’s reasoning, and does not attempt to explain why his § 2241 petition falls
within the savings clause of § 2255. Nevertheless, out of an abundance of caution, the
Court has conducted de novo review. Put simply, Petitioner has not demonstrated that §
2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. §
2255(e). The Fourth Circuit has held that “the remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has been unable to obtain relief
under that provision or because an individual is procedurally barred from filing a § 2255
motion.” In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir.1997) (citations omitted). Therefore,
Petitioner’s objections are overruled.
CONCLUSION
After de novo review of the record, the applicable law, the Report of the Magistrate
Judge, and Petitioner’s objections, the Court finds no error. Accordingly, the Court
overrules Petitioner’s objections and adopts and incorporates the Report (ECF No. 16) by
reference into this Order. It is therefore ORDERED that Petitioner’s § 2241 petition is
DISMISSED without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
August 8, 2018
Greenville South Carolina

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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