United States District Court, M.D. Pennsylvania
December 8, 2005.
TOY BURTRON MADDEN, Petitioner,
RONNIE R. HOLT, Warden, Respondent.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
On August 26, 2005, petitioner Toy Burtron Madden, filed a
petition for writ of habeas corpus. Madden's petition states that
he is relying on the Great Writ of the Common Law and he cites to
the suspension clause, Art. I, Sec. 9, cl. 2 of the United States
Constitution for support for jurisdiction.*fn1 Madden's
petition asserts: (1) that he should be provided relief via the Great Writ and not
a motion under 28 U.S.C. § 2255 because he is alleging treaty
violations; (2) the holding of Booker v. United States,
543 U.S. 220 (2005), should apply retroactively to his case;*fn2
(3) that because of the holding in Booker, Madden is actually
innocent; and (4) that he received ineffective assistance of
Madden is a federal prisoner. In 1994, Madden was convicted in
the United States District Court for the District of Maryland of
bank robberies in violation of 18 U.S.C. § 2113. After exhausting
direct review, Madden filed a series of post-conviction
challenges in the courts of the Third and Fourth Circuits. The
instant petition is his most recent challenge.
The petition was initially referred to United States Magistrate
Judge J. Andrew Smyser.
On November 18, 2005, the magistrate judge issued a nine-page
report recommending that the petition be dismissed and the case
file be closed. Magistrate Judge Smyser recommends that the
petition be dismissed without considering the substantive merits of the claims because they may
be considered only in a motion filed pursuant to
28 U.S.C. § 2255.
On or about November 28, 2005, Madden filed a "Protest to the
Entire Report and Recommendation Motion to Dismiss Petitioner's
Unlawful Detention Pleading." (Rec. Doc. No. 10). Madden objects
that the Magistrate Judge in his report and recommendation does
not address the merits of the claims he raises in his
I. RELEVANT LEGAL STANDARD
A district court reviews de novo those portions of a magistrate
judge's report and recommendation to which a party objects. L.R.
72.3. The court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
II. SECTION 2255 IS NOT INADEQUATE OR INEFFECTIVE
We agree with the magistrate judge's determination that
Madden's failure to demonstrate that the remedy created in
28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention precludes this
court from considering the merits of the claims asserted in his
Madden's reference to the International Covenant of Civil and
Political Rights does not alter that conclusion. The portion of
that treaty relied upon by Madden provides that "anyone who is
deprived of his liberty by . . . detention shall be entitled to
take proceedings before a court, in order that the court may
decide without delay on the lawfulness of his detention and order
his release if the detention is not lawful." International
Covenant of Civil and Political Rights, Art. 9, ¶ 4. Initially,
we note that it appears as though the requirements of that text
were met when Madden filed his appeal and his post-conviction
To the extent that Madden contends that he is entitled to some
further review pursuant to that treaty, the treaty is not
self-executing and therefore may not be enforced in a court.
See Macharia v. United States, 238 F. Supp. 2d 13, 29-30
(D.D.C. 2002) ("Courts have uniformly held that the ICCPR is not
self-executing and that, therefore, it does not give rise to a
private right of action.")
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. United States Magistrate Judge Andrew Smyser's Report and Recommendation is adopted in full. (Rec. Doc. No. 9.)
2. Madden's petition for writ of habeas corpus is dismissed.
(Rec. Doc. No. 1.)
3. The Clerk is directed to close the case file.
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