Serrano-Correa v. Warden Federal Correctional Institition Estill

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION, The court adopts the R&R 7 . Accordingly, the court hereby notifies Petitioner of its intent to re-characterize the petition as a § 2255 motion. Petitioner is directed to file a response to this Order by September 15, 2014, indicating whether he consents to having this §2241 petition converted to a § 2255 motion and transferred to the sentencing court. Petitioners motions to appoint counsel and for a hearing 31 , and for release from custody 35 are DENIED. Signed by Honorable Timothy M Cain on 8/27/2014. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Victor Serrano-Correa,
Petitioner,
v.
Warden, Federal Correctional
Institution, Estill,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

C/A No. 8:14-2226-TMC
ORDER

Petitioner, a federal prisoner proceeding pro se, filed a writ of habeas corpus pursuant to
28 U.S.C. § 2241, challenging a federal sentence imposed by the United States District Court for
the Eastern District of Washington. In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. Before the
court is the magistrate judge’s Report and Recommendation (“Report”) recommending that this
action be re-characterized as a habeas petition pursuant to 28 U.S.C. § 2255 and transferred to the
Eastern District of Washington.

(ECF No. 7).

Petitioner was advised of his right to file

objections to the Report. (ECF No. 7 at 8). Although granted an extension of time to file
objections to the Report (ECF No. 29), Petitioner has failed to file any objections to the Report,
and the time to do so has now run. Instead, Petitioner filed a third motion to appoint counsel and
a second motion for a hearing (ECF No. 31), as well as a motion for release from custody (ECF
No. 35).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the
absence of a timely filed objection, a district court need not conduct a de novo review, but instead

must only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The magistrate judge recommended that Petitioner’s habeas petition be re-characterized as
a habeas petition pursuant to § 2255 and transferred to the Eastern District of Washington. The
magistrate judge also informed Petitioner that if this action was re-characterized as a § 2255
petition, any subsequent § 2255 petitions would be subject to the restrictions of successive or
second §2255 motions. (Report at 6). As noted above, Petitioner has not filed any objections, but
has filed additional motions to appoint counsel, for a hearing, and to be released. (ECF Nos. 31,
35).
Because it appears that Petitioner has not previously filed a § 2255 motion, the court may
convert the instant petition into a § 2255 motion. See Castro v. United States, 540 U.S. 375, 377
(2003). However, a court cannot recharacterize a pro se litigant’s motion as the litigant’s first §
2255 motion unless the court “informs the litigant of its intent to recharacterize, warns the litigant
that the recharacterization will subject subsequent [section] 2255 motions to the law’s ‘second or
successive’ restrictions, and provides the litigant with an opportunity to withdraw, or to amend,
the filing.” Id.
The court agrees with the magistrate judge and finds that the instant petition should be
converted to a § 2255 motion. Accordingly, Petitioner has until September 15, 2014, to express
his consent to the conversion or to withdraw or amend his petition. See Castro, 530 U.S. at 383.
The court also informs Petitioner that second or successive motions under § 2255 generally are
prohibited, and would have to be certified by a panel of the appropriate court of appeals under
limited circumstances. See 28 U.S.C. § 2255(h). Certification for second or successive motions to
vacate rarely is granted. Furthermore, any conversion to a § 2255 motion will require the court to
transfer the motion to “the court which imposed the sentence . . . .” See 28 U.S.C. § 2255(a).
2

The court further informs Petitioner that the Antiterrorism and Effective Death Penalty
Act of 1996 provides that § 2255 motions have a one-year limitation period, but expresses no
opinion as to whether the sentencing court would conclude that a § 2255 motion should be
dismissed as time-barred in this instance. 28 U.S.C. § 2255(f).
After a thorough review of the Report and the record in this case, the court adopts the
Report (ECF No. 7) and incorporates it herein. Accordingly, the court hereby notifies Petitioner
of its intent to re-characterize the petition as a § 2255 motion. Petitioner is directed to file a
response to this Order by September 15, 2014, indicating whether he consents to having this §
2241 petition converted to a § 2255 motion and transferred to the sentencing court. Further,
Petitioner’s motions to appoint counsel and for a hearing (ECF No. 31), and for release from
custody (ECF No. 35) are DENIED.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
August 27, 2014

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

3