The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") of November 16, 2009 (Doc. 5) and Petitioner's Objections to the Magistrate Judge's R&R (Doc. 8). Magistrate Judge Smyser recommended that Petitioner's petition for a writ of habeas corpus be dismissed because he does not meet the narrow requirements that would allow this Court to consider a habeas petition under 42 U.S.C. § 2241. This Court will adopt Judge Smyser's R & R for the reasons discussed more fully below.
On March 14, 1994, Petitioner, Adewale Aladekoba, was convicted of conspiracy to distribute and possess heroin with intent to distribute, possession of heroin with intent to distribute, and possession of a firearm during and in relation to a drug trafficking crime, pursuant to 18 U.S.C. § 924(c)(1). (Doc. 1.) Petitioner filed a direct appeal with the Fourth Circuit Court of Appeals; his appeal was denied on November 17, 1997. United States v. Aladekoba, 129 F.3d 1260 (table) (4th Cir. 1997), cert. denied, 523 U.S. 1100 (1998).
Petitioner filed a motion for post-conviction relief pursuant to 42 U.S.C. § 2255 in the United States District Court for the District of Maryland. (Doc. 1.) In that petition, Petitioner made several claims for ineffective assistance of counsel, including counsel's failure to raise the issue of whether Petitioner's firearms conviction could stand on the basis of United States v. Bailey, 516 U.S. 137 (1995). United States v. Aladekoba, Nos. Civ, WMN-99-1180, CR. WMN-93-018, 2001 WL 487763, at *2 (D. Md. April 24, 2001), aff'd, 22 Fed. Appx. 199 (4th Cir. 2001).
On September 22, 2009, Mr. Aladekoba filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his firearms convictions because he is "actually innocent" in light of Bailey and Muscarella v. United States, 524 U.S. 125 (1998) . (Doc. 1.) On November 16, 2009, Magistrate Judge Smyser issued his R & R suggesting that the petition for writ of habeas corpus be denied. (Doc. 5.) On December 30, 2009, Petitioner filed his Objections to the R & R and an accompanying memorandum of law. (Docs. 8-9.) No response to these Objections was filed.
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
I. 42 U.S.C. § 2255 Safety-Valve
42 U.S.C. § 2255 gives prisoners in custody pursuant to a federal crime the right to attack their conviction on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Generally, this is the preferred avenue for post-conviction relief for prisoners convicted for violation of federal statutes. See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997) (noting that after Congress enacted § 2255, it has been "the usual avenue for federal prisoners seeking to challenge the legality of their confinement," not § 2241).
42 U.S.C. § 2255(e) provides that "[a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." (Emphasis added). Thus, a district court cannot entertain a habeas petition filed pursuant to § 2241 unless a § 2255 motion would ...