United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
Jose Lopez-Diaz, proceeding pro se and in forma
pauperis, filed for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (2008) (“Habeas Petition”).
(ECF No. 1.) The matter before the court is a review of the
Magistrate Judge's Report and Recommendation
(“Report”). (ECF No. 25.) For the reasons below,
the court ACCEPTS the Magistrate Judge's
Report (ECF No. 25), GRANTS Respondent's
Motion to Dismiss for lack of jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1) (ECF No. 19), and
DISMISSES Petitioner's Habeas Petition
(ECF No. 1) with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 25.) In June 2012, a jury found
Petitioner guilty of healthcare fraud, conspiracy to commit
healthcare fraud, and aiding and abetting aggravated identity
theft, and the jury also returned a special forfeiture
verdict for $727, 729.16. (Id. at 2.) Petitioner is
serving a 121-month sentence at Federal Correctional
Institution Estill in Estill, South Carolina. (Id.
at 1.) Petitioner filed a Habeas Petition on December 17,
2018. (ECF No. 1.) On April 2, 2019, Respondent filed a
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1). (ECF No.
19.) The Magistrate Judge issued a Roseboro order
notifying Petitioner of Respondent's motion and advising
him of the possible consequences if he failed to respond
adequately. (ECF No. 20.) Petitioner filed a Response on
April 15, 2019, and two supplemental responses in May 2019.
(ECF Nos. 22, 23, 24.) The Magistrate Judge issued her Report
on October 1, 2019, recommending that the court grant
Respondent's Motion and dismiss the Habeas Petition with
prejudice. (ECF No. 25 at 9.) Petitioner timely filed
objections to the Report on October 15, 2019. (ECF No. 27.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. See 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “in the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Thus, the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a favorable
manner, “no matter how inartfully pleaded, to see
whether they could provide a basis for relief.”
Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1
(4th Cir. Aug. 12, 1997). Although pro se documents
are liberally construed by federal courts, “[t]he
‘special judicial solicitude' with which a district
court should view pro se complaints does not
transform the court into an advocate.” Weller v.
Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391
(4th Cir. 1990).
Magistrate Judge recommends Respondent's Motion to
Dismiss be granted because “Petitioner's challenge
arises from the imposition of his conviction or sentence, and
not its execution.” (ECF No. 25 at 6.) As such, the
court “lacks jurisdiction to consider Petitioner's
[Section] 2241 [Habeas Petition], as he cannot show that
[Section] 2255 is inadequate to test either his conviction or
his sentence.” (ECF No. 25 at 8.) Petitioner objects
and asserts the following, verbatim:
The case after six years does not have victims and the next
step is give my liberty.
The court has knowledge of the evidence in the amount money
and under the law . . . the petitioner request to the judge
for the follow and compliance the law.
The intention of every government employer with knowledge in
do not respect the law is sufficiently evidence for find
charge of ‘Criminal Act.' The intention of every
person with knowledge for commit antisocial behavior will
find the diagnosis of ‘Psychopatah Disorder' and
will require a mental health disease management.
The judge need will give to the Warden Mackeburg the power
and support for complete the ‘Administrative
Process,' and order the pay of the money or liberate the
‘Innocent Prisoner' preventing the actual status of
disaster in the prison.
(ECF No. 27 at 1-2.) The court finds that, while Petitioner
seems to object to specific portions of the Report, he merely
rehashes his previous assertions. (Compare ECF Nos.
22, 23, 24.) Absent specific objections to the Report, the
court must only review the record to ensure that there is no
clear error. See Diamond, 416 F.3d at 315.
Petitioner claims that Section 2241 applies because
“[t]he payment of restitution to the government is
considered part of the sentence and the execution of that
sentence is what [he] is challenging.” (ECF No. 25 at
4-5 (citing ECF No. 23 at 1).) The Report provides:
“Petitioner requests relief because the [Bureau of
Prisons] has failed to provide the names of the victims, how
much money has been paid to each victim, and a description of
the manner in which the money is being distributed” and
“alleges that the BOP failed to respond to his requests
for information because there are no victims and the
government has illegally seized his money and
property.” (Id. ...