Hinton v. The United States District Court Norfolk, VA et al

Filing 14

FINAL ORDER adopting findings and recommendations set forth in the U.S. Magistrate Judge's 7 Report and Recommendation; TRANSFERRING this matter to the U.S. District Court for the Northern District of West Virginia. Signed by District Judge Raymond A. Jackson and filed on 8/6/09. Copies mailed to petitioner and to respondent c/o U.S. Attorney for Northern District of West Virginia 8/7/09.(mwin, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

rlLtU
AUG -6 20G9
CLERK. U.S. DISTRICT COURT

Norfolk Division

FRANK L.

HINTON,

#26366-083,
Petitioner,

v>

ACTION NO.

2:09cv90

WARDEN,

UNITED STATES

PENITENTIARY - HAZELTON,

Respondent.

FINAL

ORDER

This matter was
corpus under 28 U.S.C.

initiated by petition for a writ of habeas
§ 2241.

Petitioner,

Frank

L.

Hinton,

was

convicted

in

the

United

States District Court for the Eastern District of Virginia, Norfolk

Division.

On

February

14,

1995,

the

undersigned

sentenced

Petitioner to a prison term of 100 months after pleading guilty to

one count

of possession of
§

a

firearm by

a convicted felon,

in

violation of 18 U.S.C.

922(g)(l).

The matter was referred to a United States Magistrate Judge

pursuant

to the provisions

of

28 U.S.C.

§

636(b)(l)(B)

and

(C) ,

Rule 72 of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Report and

Recommendation of the U.S.

Magistrate Judge was

filed on June 29,

2009,

recommending that this matter be transferred to the United

States District Court for the Northern District of West Virginia.

This

Court cannot exercise personal

jurisdiction over

Petitioner

because he is currently incarcerated at United States Penitentiary
Hazelton, in Bruceton Mills, West Virginia. By copy of the

report,

Petitioner

was

advised

of

his

right

to

file

written

objections

to

the

findings

and reconunendations

made by the

U.S.

Magistrate Judge. Magistrate

The Court has received an objection to the U.S. Report and Recommendation
and the

Judge's
not

by

Petitioner.
for doing so

Respondent has

filed an objection,

time

has now passed.1
On February 26, 2009, Hinton filed a petition for a writ § 2241. On March 12, 2009, of the

habeas corpus pursuant to 28 U.S.C.

Court received and filed four motions by Petitioner:
for writ of habeas
and one

two petitions
writ
These

corpus,
motion

one
for a

petition
bond

for

a

of

ad

prosequendum,

hearing.

motions

1 This case was originally styled as "Frank L. Hinton,

#26366-

083 v. The United States District Court Norfolk, VA, et al." The U.S. Magistrate Judge, in his Report and Recommendation, ordered the Clerk of Court to substitute the current respondent, Warden, United States Penitentiary Hazelton, for the original respondents. The Warden of United States Penitentiary - Hazelton

was
not

not

an original
served

respondent
in this

to

this

action,

and has

therefore
is § the 2241

yet been

action.

The Warden, in a

however, 28 U.S.C.

proper respondent,

as

the proper respondent

case is the warden of the institution that exercises custody over the petitioner at the time the petition is filed. Rumsfeld v. Padilla. 542 U.S. 426, 434-35 (2004). To allow Respondent to object to the Report and
Recommendation, on July 17, Report and Recommendation 2 009, the be mailed Court directed that to Respondent and the to

Respondent's presumed counsel, the United States Attorney for the Northern District of West Virginia. The Court has received no

response

from either Respondent

or the United States Attorney.

were

filed

on

Petitioner's

trial

docket,

Criminal

Action

No.

2:94crlO6,

and have subsequently been filed in the instant case.

As set forth more fully in the U.S. Magistrate Judge's Report and

Recommendation,

it

appears

that

Petitioner

makes

two

essential

arguments

in

his

petitions.

First,

Petitioner

argues

that

the

undersigned misapplied the United States Sentencing Guidelines when
he sentenced Petitioner. Generally, such an argument does not

support 28 U.S.C. extraordinary

§ 2255 relief,

but may support such relief given as when a sentence exceeds a

circumstances,

such

statutory maximum.

United States v.

Preaent.

190 F.3d 279,

283-84

(4th

Cir.

1999).

Petitioner

argues

that

he

believed

he

would

receive twenty-four months incarceration by entering a guilty plea,
and that the undersigned's sentence of 100 was excessive. Second,

Petitioner argues that he has already served the 100 month sentence
and that he should therefore be released. Challenges to the

execution of a sentence are properly § 2241 petitions.
States v. Miller. 871 F.2d 488, 490 (4th Cir. 1989).

See United

The

Court,

having

reviewed

the

record

and

examined

the

objection
report,

filed

by

Petitioner
made de

to

the

U.S.

Magistrate
with respect

Judge's
to the

and

having

novo

findings

portions

objected to,

hereby adopts

the findings and recommenda

tions set forth in the report of the United States Magistrate Judge
filed on June 29, 2009, and it is, therefore, ORDERED that this

matter be TRANSFERRED to the United States District Court for the
Northern District of West Virginia.

The

Clerk

shall

mail

a

copy

of

this

Final

Order

to

the

petitioner and the respondent.

Raymond A. Jackson

United States District Judge
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia

^ , 2009