Pflum v. United States of America

Filing 7

ORDER denying as moot 3 Motion for Change of Sentencing Date or Dismiss Case with Prejudice for Lack of Subject Matter and in personam Jurisdiction ; adopting 4 Report and Recommendation; overruling 5 Objection to Report and Recommendation. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 5/22/2017. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DAVID G. PFLUM,
a/k/a :David-Gerard: Pflum,
Petitioner,
vs.
UNITED STATES OF AMERICA,

4:17-CV-04064-KES

ORDER ADOPTING REPORT
AND RECOMMENDATION
AND DISMISSING PETITION

Respondent.
Petitioner, David Gerard Pflum, filed this petition for writ of habeas
corpus under 28 U.S.C. § 2254. Docket 1. The matter was assigned to United
States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and
this court’s October 16, 2014 standing order. Magistrate Judge Duffy
recommends that the petition be dismissed because Pflum has not fulfilled the
requirements to transfer his case and relief under § 2254 is unavailable to him.
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

Pflum objects to Magistrate Judge Duffy’s recommendation of dismissal,
but does not respond to the analysis in the report and recommendation. In his
objection, Pflum states that his original filing was meant to be a petition for
writ of habeas corpus under 28 U.S.C. § 2241. Docket 5 at 2. “A petitioner may
attack the execution of his sentence through § 2241 in the district where he is
incarcerated[.]” Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). Pflum
is currently incarcerated in Kansas. See Docket 1 at 10. Therefore, even if
Pflum’s filing is construed as a habeas petition brought under 28 U.S.C.
§ 2241, the United States District Court for the District of South Dakota has no
jurisdiction over such a petition. The report and recommendation is adopted in
full, and Pflum’s petition is dismissed.
“A district court may deny an evidentiary hearing where (1) accepting the
petitioner's allegations as true, the petitioner is not entitled to relief, or (2) ‘the
allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). Here, an
evidentiary hearing is not required because the record shows that Pflum is
incarcerated in Kansas, that he is a federal prisoner, and that he pleaded
guilty.
Before denial of a § 2254 petition may be appealed, a petitioner must
first obtain a certificate of appealability from the district court. Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the
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applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(2). A “substantial showing” is one that demonstrates
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). The court finds that Pflum fails to make a substantial showing that
the district court’s assessments of his claims are debatable or wrong.
Consequently, a certificate of appealability is not issued.
Thus, it is ORDERED
1. Pflum’s objection to the report and recommendation (Docket 5) is
overruled.
2. The report and recommendation (Docket 4) is adopted in full.
3. Pflum’s petition for writ of habeas corpus under 28 U.S.C. § 2254
(Docket 1) is dismissed.
4. A certificate of appealability is not issued.
5. Pflum’s motion for change of sentencing date or to dismiss (Docket 3)
is denied as moot.
Dated May 22, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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