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Diaz v. Warden Fci Bennettsville

United States District Court, D. South Carolina

August 8, 2016

Abel Diaz, Petitioner,
v.
Warden FCI Bennettsville, Respondent.

          Abel Diaz, Petitioner, Pro Se.

          Warden FCI Bennettsville, Respondent, represented by Jimmie Ewing, U.S. Attorneys Office.

          ORDER AND OPINION

          BRUCE HOWE HENDRICKS, District Judge.

         Petitioner, Abel Diaz, ("Petitioner"), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial handling and a Report and Recommendation ("Report"). Magistrate Judge Rogers recommends that Respondent's Motion to Dismiss be granted and the § 2241 petition be denied. (ECF No. 83.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.

         BACKGROUND

         In this § 2241 action, Petitioner, a federal inmate at FCI-Bennettsville, alleges that he is actually innocent of the crimes for which he was convicted and that § 2255 does not provide him an adequate or effective remedy to test the legality of his detention. Moreover, Petitioner alleges that the sentence he received exceeds the statutory maximum he would have faced had his sentence not been improperly enhanced. ( See ECF No. 1 at 9.)

         On February 9, 2015, the Magistrate Judge issued his first Report and Recommendation ("first Report") recommending that the § 2241 petition be dismissed without prejudice and without requiring the respondent to file a return because Petitioner does not allege any new, reliable evidence that was not presented in his prior proceedings that supports his innocence, and because Petitioner's challenge to his Career Offender Status is not appropriate for review under § 2241 and Petitioner does not satisfy the savings clause of § 2255. (ECF No. 52.) On February 23, 2015, Petitioner filed objections to the first Report. (ECF No. 55).

         In declining to adopt the first Report, the Court noted that the Magistrate Judge issued his initial recommendation without the benefit of Surratt, [1] which left open the question of whether a petitioner whose resultant sentence exceeds the statutory maximum could proceed under § 2241. (ECF No. 59 at 7); see Surrat, 797 F.3d at 250, 255, 269 (stating that " Jones is not the exclusive route to § 2255(e) relief in all situations.... [A] sentence imposed above the proper statutory maximum might present [an] instance of an unlawful sentence, as the power to prescribe the punishments to be imposed upon those found guilty of [federal crimes] resides wholly with Congress.'... We do not decide whether, for instance, a federal prisoner might bring a § 2241 petition claiming that the district court unlawfully sentenced him to a term of imprisonment exceeding the statutory maximum." (quoting Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980))).

         Respondent filed a Motion to Dismiss on October 6, 2015. (ECF No. 67.) On October 30, 2015, Petitioner filed a Response to the Motion to Dismiss. (ECF No. 77.) The Magistrate Judge then issued the instant Report recommending that the Motion to Dismiss be granted. (ECF No. 83.) Petitioner timely filed objections (ECF No. 85) to the Report. The Court has reviewed those objections, but finds them to be without merit; therefore, it will enter judgment accordingly.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, 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) ("[ D ] e novo review [is] unnecessary in... situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation."). In the absence of a specific objection, the Court reviews the Magistrate's conclusions only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). On June 14, 2016, Petitioner filed objections (ECF No. 85) in this case, and the Court has thus conducted the requisite de novo review.

         In reviewing these pleadings, the Court is mindful of Petitioner's pro se status. When dealing with a pro se litigant, the Court is charged with liberal construction of the pleadings. See, e.g., De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not mean, however, that the Court can ignore a petitioner's clear failure to allege facts that set forth a cognizable claim, or that the Court must assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

         DISCUSSION

         Upon review, Petitioner's objections provide no basis for this Court to deviate from the Magistrate Judge's recommended disposition. The petition for a writ of habeas corpus pursuant to § 2241 must be denied for the reasons set ...


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