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James Ray Tolan v. R. Martinez

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


October 18, 2011

JAMES RAY TOLAN, PETITIONER
v.
R. MARTINEZ, RESPONDENT

The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

James Ray Tolan, an inmate at FCI-Allenwood, White Deer, Pennsylvania, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his 1995 convictions in the Superior Court of the District of Columbia after a jury trial for first-degree burglary while armed, carrying a dangerous weapon, mayhem while armed, malicious disfigurement while armed, and aggravated assault while armed. As grounds for relief, Petitioner asserts he is innocent, based in part on an affidavit of the victim, in which she recants her trial testimony. He also asserts that the superior court denied him due process when it denied his motion for a new trial without a hearing, a motion also based on the victim's post-trial affidavit.

The magistrate judge has filed a report and recommendation, recommending that the petition be dismissed because Petitioner has failed to show that his remedy by way of D.C. Code § 23-110 was inadequate or ineffective to test the legality of his detention.*fn1

We are considering Petitioner's two objections to the magistrate judge's report. First, Petitioner contends section 23-110 was inadequate or ineffective to test the legality of his detention because the credibility of the victim's recantation had to be evaluated at an evidentiary hearing and that both the superior court and the District of Columbia Court of Appeals denied him this hearing.*fn2 Second, Petitioner contends that we must entertain his 2241 petition; otherwise there would be a fundamental miscarriage of justice because he is actually innocent of the crimes of conviction.

We are required to make a de novo determination of those portions of the magistrate judge's report to which Petitioner objects. 28 U.S.C. § 636(b)(1). In doing so, we conclude the objections have no merit. In regard to the first objection, we agree with the magistrate judge that the failure of Petitioner to obtain a hearing on his new-trial claim does not show that his remedy under section 23-110 was inadequate or ineffective. In regard to the second objection, it likewise does not show that his remedy under section 23-110 was inadequate or ineffective.*fn3 Thus, we have no jurisdiction to entertain Tolan's 2241 petition. See Austin v. Miner, 235 F. App'x 48, 50 (3d Cir. 2007)(per curiam)(nonprecedential)("federal courts lack jurisdiction to entertain the habeas corpus petition of a District of Columbia prisoner, absent a showing that his remedy pursuant to D.C. Code Ann. § 23-110 is "inadequate or ineffective to test the legality of" the detention)(citing Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 1229, 51 L.Ed.2d 411 (1977) and D.C. Code Ann. § 23-110(g)).

We will issue an appropriate order.

William W. Caldwell

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES RAY TOLAN, Petitioner v. R. MARTINEZ, Respondent

CIVIL NO. 1:11-CV-1050

ORDER

AND NOW, this 18th day of October, 2011, upon consideration of the report of the magistrate judge (Doc. 14), filed August 17, 2011, Petitioner's objections thereto (Doc. 15), and upon independent review of the record, it is ordered that:

1. The magistrate judge's report (Doc. 14) is adopted.

2. The petition (Doc. 1) for a writ of habeas corpus under 28 U.S.C. § 2241 is dismissed for lack of jurisdiction.

3. The Clerk of Court shall close this file.

William W. Caldwell United States District Judge


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