Danko v. USA

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 8 . Court ADOPTS the R&R in its entirety (dkt. no. 8), DENIES Dankos petition, DISMISSES this case WITHOUT PREJUDICE, and ORDERS this case stricken from its active docket. Court concludes that Danko has failed to make the requisite showing, and DENIES a certificate of appealability. Court directs the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 7/18/2017. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/18/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY DAVID DANKO,
Petitioner,
v .

//

CIVIL ACTION NO. 1:16CV64
CRIMINAL ACTION NO. 1:08CR80
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
On April 14, 2016, the pro se petitioner, Timothy David Danko
("Danko") , an inmate at FCI Allenwood, filed a motion to vacate
pursuant to 28 U.S.C. §§ 2255, which the Court referred to United
States Magistrate Judge Michael J. Aloi for initial screening and
a Report and Recommendation("R&R") in accordance with LR PL P 2.
Danko’s petition asserted two claims for relief. First, Danko
claims that his counsel was ineffective for failing to advise him
or object to the amended presentence report (“PSR”) that raised his
restitution to one of the victims from $1,500.00 to $3,625.60.
Next, Danko claims that the Court relied on unverified, fraudulent
declarations regarding the victim’s loss in determining the amount
of restitution.
On June 20, 2017, Magistrate Judge Aloi issued an R&R, in
which he recommended that the Court dismiss Danko’s petition
because the claim for relief that he seeks is not properly brought
under a § 2255 petition (dkt. no. 8 at 6-7). Further, to the extent
that the relief Danko seeks may be brought pursuant to a § 2241

DANKO V. USA

1:16CV64

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
petition, such a petition must be brought in the jurisdiction where
he is currently incarcerated, which is the Middle District of
Pennsylvania. Id. at 7. The R&R also specifically warned Danko that
his failure to object to the recommendation would result in the
waiver of any appellate rights he might otherwise have on this
issue. Id. at 7-8.

On July 12, 2017, Danko filed his objection to

the R&R (dkt. no. 10).
STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions of the R&R to which an objection is
timely made. See 28 U.S.C. § 636(b)(1)(C). 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 such cases,
“the Court may adopt, without explanation, any of the magistrate
judge’s recommendations to which the prisoner does not object.”
Dellaciprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Further, courts will uphold those portions of a recommendation to
which

no

objection

has

been

made

unless

they

are

“clearly

erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
2

DANKO V. USA

1:16CV64

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
A failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n. 4 (4th Cir. 1984); Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991). Finally, objections that reiterate
the same arguments already presented and fully addressed in the R&R
“lack the specificity required by Rule 72 and have the same effect
as a failure to object.” Phillips v. Astrue,

2011 WL 5086851, at

*2 (W.D.Va. Oct. 25, 2011 ) (citing Veney v. Astrue, 539 F.Supp.2d
841, 845 (W.D.Va. 2008)).
DISCUSSION
Danko’s objections simply reiterate arguments he previous
raised in his petition, which were clearly addressed and thoroughly
analyzed in Judge Aloi’s R&R, and, therefore, the R&R is subject
only to clear error review. Phillips,

2011 WL 5086851, at *2.

Danko once again argues that he was unaware that the amount of
restitution to one of his victims had increased from $1,500.00 in
the original PSR, to $3,650.00 in the amended PSR. His objection
claims that he “had no reason to suspect that there was a revised
PSR or increased restitution, until it was pointed out by his Unit
Team at FCI Allenwood.” Dkt. No. 1 at 3. Further, he contends that
he “could not have become aware of the revised PSR until September,
2015, when his unit team informed him of the increase in his
restitution.” Id. at 4.
3

DANKO V. USA

1:16CV64

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
To begin, the R&R correctly notes that Danko cannot challenge
his restitution through a § 2255 petition. See United States v.
Bernard, 351 F.3d 360, 361 (8th Cir. 2003) (collecting cases and
noting that “the plain and unambiguous language of [§ 2255] - “[a]
prisoner in custody . . . claiming the right to be released” precludes a restitution challenge”); U.S. v. Hudgins, 201 Fed.
Appx.

142

(4th

Cir.

2006)

(unpublished)

(citing

Bernard).

Challenges to restitution may only be brought through a § 2241
petition in the judicial district in which the defendant is
currently incarcerated, which, in Danko’s case, is the Middle
District of Pennsylvania. See Bernard, 351 F.3d at 361; Hudgins,
201 Fed. Appx. at 143.
Nevertheless, even if the Court had jurisdiction to hear
Danko’s challenge, his claim would fail on the merits. Although he
argues that he was unaware of the amount of restitution until
September 2015, Danko’s memory fails him — badly. A review of the
sentencing transcript completely belies Danko’s arguments. During
the sentencing hearing, the Court discussed with the parties the
amended PSR and, specifically, the increase in restitution due to
one of Danko’s victims. See Case No. 1:08-cr-80, dkt. no. 50 at 5.
Indeed, not only was there a lengthy discussion of the issue, the
government called the victim as a witness in order to establish the
proper amount of restitution. Id. at 14-20. Following the victim’s
4

DANKO V. USA

1:16CV64

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
testimony, the Court made the clear determination that the proper
amount was $3,625.60.1 Id. at 20. Thus, it is quite evident that
Danko was aware of the amount of restitution at the time of his
sentencing and any argument that he first learned of the amended
PSR or the increased restitution amount until September 2015 — six
and one half years later — is entirely baseless.
CONCLUSION
After reviewing the record and the R&R, and finding no clear
error, the Court ADOPTS the R&R in its entirety (dkt. no. 8),
DENIES Danko’s petition, DISMISSES this case WITHOUT PREJUDICE, and
ORDERS this case stricken from its active docket.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule ll(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.

If

the

court

denies

the

certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of

1

The victim’s final total claim was for $3,825.60, but the
Court determined that $200.00 of the claim lacked documentary
support. The Court left open the final amount for ninety days,
giving the victim the opportunity to provide the proper
documentation. The $200 was never added to the restitution amount,
presumptively because the victim never presented the proper
documentation. See Case No. 1:08-cr-80, dkt. no. 50 at 19-20.
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DANKO V. USA

1:16CV64

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
Appellate Procedure 22.” 28 U.S.C. foll. § 2255 (a). The Court
finds it inappropriate to issue a certificate of appealability in
this matter because Danko has not made a “substantial showing of
the denial of a constitutional right.” See 28 U.S.C. § 2253(c) (2).
A

petitioner

reasonable

satisfies

jurists

this

would

standard

find

that

by
any

demonstrating
assessment

of

that
the

constitutional claims by the district court is debatable or wrong,
and that any dispositive procedural ruling by the district court is
likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). Upon review of the record, the Court concludes that Danko
has failed to make the requisite showing, and DENIES a certificate
of appealability.
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
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: July 18, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

6