Montgomery v. Coakley
ORDER ADOPTING REPORT AND RECOMMENDATION: the Court ORDERS Magistrate Judge Aloi's 20 Report and Recommendation ADOPTED for the reasons more fully stated therein. The Court DENIES and DISMISSES the Petitioner's 1 28 U.S.C. §2241 pe tition WITH PREJUDICE and DENIES the Petitioner's 14 motion for evidentiary hearing, 15 motion to discharge and for summary judgment and 16 motion to appoint counsel AS MOOT. Because the instant petition seeks relief pursuant to §224 1, the Court makes no certificate of appealability determination in this matter. The Court DIRECTS the Clerk to strike this case from the active docket and enter a separate judgment order in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 03/24/2017. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 3/24/2017: # 1 Certified Mail Return Receipt) (cwm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:16-CV-56
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Michael J. Aloi. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Aloi for submission of
an R&R. On March 2, 2017, Magistrate Judge Aloi issued his R&R, recommending that
this Court deny and dismiss with prejudice the Petitioner’s 28 U.S.C. § 2241 petition.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a petitioner’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
In this case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, objections to Magistrate Judge Aloi’s R&R were due within
fourteen days after being served with a copy of the same. The Petitioner was served with
the R&R on March 7, 2017, and timely filed objections.1 The crux of the Petitioner’s
objections concerns a claim of actual innocence, which he argues entitles him to review
of his § 2241 petition on the merits. He advises his plea agreement and transcripts reveal
that he plead guilty to crimes not charged in the indictment. On the contrary, on July 19,
2012, the Petitioner plead guilty to Counts Five and Six of the superseding indictment.
Judgment and Commitment, United States v. Montgomery, 5:08-CR-00387-OLG-1 (W.D.
Tex. July 30, 2012), ECF No. 139. During the plea hearing, the magistrate judge found
that there was a factual basis for the plea and that it was freely and voluntarily made.
Memorandum and Recommendation, Montgomery, 5:08-CR-00387-OLG-1 (W.D. Tex.
July 19, 2012), ECF No. 130. A review of the record in the Petitioner’s Western District
of Texas case does not substantiate his claim of actual innocence, but rather supports
his underlying conviction for bank robbery and using a firearm during a crime of violence
as charged in Counts Five and Six of the superseding indictment. Accordingly, the Court
OVERRULES the objections.
As articulated by Magistrate Judge Aloi in the R&R, the Petitioner is not entitled to
utilize § 2241 to assert his actual innocence claim. A § 2241 petition is appropriate when
it “attacks . . . the execution of a sentence.” Fontanez v. O’Brien, 807 F.3d 84, 87 (4th
Cir. 2015) (collecting cases); see also In re Vial, 115 F.3d 1192, 1994 n.5 (4th Cir. 1997).
Alternatively, a petition is properly filed pursuant to § 2255 when it attacks the legality of
The Court received, and has considered, both the Petitioner’s original objections [ECF No. 23] on March
16, 2017, and amended objections [ECF Nos. 24, 25] on March 22, 2017.
a conviction or sentence. United States v. Hadden, 475 F.3d 652, 660 (4th Cir. 2007);
Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (per curiam) (collecting cases).
In limited circumstances, a federal prisoner may bring his claim pursuant to § 2241 if he
demonstrates that relief provided under § 2255 is inadequate or ineffective. See 28
U.S.C. § 2255; In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). Here, the Petitioner attacks
the legality of his conviction and sentence and has failed to meet the savings clause
requirements as announced in Jones. See Jones, 226 F.3d at 333-34. Thus, a § 2255
petition is the proper mechanism with which to pursue his claim.
Upon consideration, and finding no error, the Court ORDERS Magistrate Judge
Aloi’s Report and Recommendation [ECF No. 20] ADOPTED for the reasons more fully
stated therein. The Court DENIES and DISMISSES the Petitioner’s 28 U.S.C. § 2241
petition [ECF No. 1] WITH PREJUDICE and DENIES the Petitioner’s motion for
evidentiary hearing [ECF No. 14], motion to discharge and for summary judgment [ECF
No. 15] and motion to appoint counsel [ECF No. 16] AS MOOT.
Because the instant petition seeks relief pursuant to § 2241, the Court makes no
certificate of appealability determination in this matter.
The Court DIRECTS the Clerk to strike this case from the active docket, enter a
separate judgment order in favor of the Respondent and mail a copy of this Order to the
pro se Petitioner by certified mail, return receipt requested.
DATED: March 24, 2017
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