Fenton v. United States Of America

Filing 22

ORDER dismissing 10 28:2241 petition; adopting Report and Recommendations re 19 Report and Recommendations. Signed by District Judge Irene M. Keeley on 10/24/11. (copy pro se petitioner via certified mail.)(jcs) (Additional attachment(s) added on 10/24/2011: # 1 Certified Mail Return Receipt) (jcs).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PERCIVAL NORMAN FENTON,
Petitioner
v.

//

CIVIL ACTION NO. 1:11CV36
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On March 7, 2011, pro se petitioner, Percival Norman Fenton
(“Fenton”), filed an Application for Habeas Corpus pursuant to 28
U.S.C. § 2241 in the United States District Court for the Western
District of Virginia (dkt. no. 10). Because the petitioner was
incarcerated in U.S.P. Hazelton, which is located in Bruceton
Mills, West Virginia, the matter was transferred to this Court and
referred to United States Magistrate Judge Seibert for initial
screening and a report and recommendation in accordance with Local
Rule of Prisoner Litigation Procedure 2. On May 19, 2011, Judge
Seibert issued an Opinion and Report and Recommendation (“R&R”)
recommending that Fenton’s petition be dismissed without prejudice
for being an improper remedy (dkt. no. 19).
The R&R stated that any party could file objections to the
report and recommendation within fourteen days of being served. On
May 31, 2011, Fenton filed a “Response to Civil Action No. 1:11cv35
(court recommendation May 19, 2011)” (dkt. no. 21), which the Court
construes as a timely filed objection. Fenton objects to Judge

FENTON v. UNITED STATES

1:11CV36

ORDER ADOPTING REPORT AND RECOMMENDATION
Seibert’s finding that his § 2241 petition improperly attempts to
challenge the validity of his sentence. Fenton asserts that,
because the one-year statute of limitations on filing a § 2255
petition

had

expired,

such

a

remedy

was

“inadequate

or

ineffective.”
After reviewing the record and conducting a de novo review of
the matters before the Magistrate Judge, the Court FINDS without
difficulty that Fenton’s objections are without merit. As noted by
Judge Seibert, a § 2255 petition is only deemed an “inadequate and
ineffective” remedy when the three specific conditions of In re
Jones are satisfied. 226 F.3d 328, 333-34 (4th Cir. 2000). That the
statute of limitations for filing a § 2255 petition had expired
does not satisfy any one, much less all, of these conditions.
Accordingly, the Court ADOPTS the Report and Recommendation in its
entirety, DISMISSES the petition (dkt. no. 10), and ORDERS the case
DISMISSED WITHOUT PREJUDICE and stricken from the Court’s docket.1
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of

1

Fenton also argues that the Court should toll the one-year
statute of limitations on filing a § 2255 petition. Fenton did not
file a § 2255 petition, however, so this argument does not alter
the Court’s finding that Fenton’s filing of a § 2241 petition was
improper.
2

FENTON v. UNITED STATES

1:11CV36

ORDER ADOPTING REPORT AND RECOMMENDATION
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: October 24, 2011
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3