The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the Report and Recommendation of Magistrate Judge Malachy E. Mannion (Doc. 15), recommending that this action be dismissed. As Magistrate Judge Mannion was correct to determine that Volcy's Petition failed to make the necessary showing that relief under 28 U.S.C. § 2255 would be ineffective and inadequate, the Court will adopt the Report and Recommendation and will dismiss Volcy's Petition.
Petitioner Hardaway Volcy is a prisoner at United States Penitentiary-Canaan in Waymart, Pennsylvania. He is serving a federal sentence, imposed by the United States District Court for the Middle District of Florida, for: (1) conspiracy to distribute and possess with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); and (2) possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. §2. (Am. J., Doc. No. 1-3 at 2.) Volcy states that he is currently serving a 97-month term for these convictions. On November 7, 2011, Volcy filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Pet. at 11, Doc. 1-2.) His Petition is based on his alleged innocence, double jeopardy issues, and infirmities with the district court's jurisdiction over the matter. (Id. at 6.) Volcy represents that he has previously filed two unsuccessful habeas corpus petitions under 28 U.S.C. § 2255. (Id.)
On November 29, 2011, the Court directed Volcy to make a "Miller" election, informing him that he could have his Petition ruled on as filed, have it re-characterized as a Section 2255 motion and heard as such, or that he could withdraw his petition and file one all-inclusive Section 2255 motion within the statute of limitations period. See United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999). On December 6, 2011, Volcy filed his Notice of Election, declaring that his motion was not brought under Section 2255, and requesting that it should be ruled on as filled.
Magistrate Judge Mannion, construing Volcy's Petition as a writ of habeas corpus pursuant to 28 U.S.C. § 2241, reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.*fn1 While Volcy argues in his Petition that the use of a Section 2255 habeas motion would be ineffective and inadequate where the statute of limitations has expired and the Section 2255 motion has been exhausted, the Magistrate Judge determined that this was not the case, and recommended that the petition be dismissed for a lack of jurisdiction. (Report and Recommendation at 6-7, Doc. 15.) Volcy filed an objection to the Report and Recommendation on January 17, 2012. In it, he argues that his Petition should be considered directly under Section 2241, and even if it is considered under Section 2255 as a threshold determination, that his Petition triggers Section 2255's "safety valve" provision allowing him to opt for relief under Section 2241. Volcy's Objections to the Report and Recommendation are now ripe for review.
I. Legal Standard for Reviewing a Report and Recommendation
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). As such, the Court reviews the portions of the Report and Recommendation to which the petitioner objects de novo. The remainder of the Report and Recommendation is reviewed for clear error.
In pertinent part, Volcy objects to Magistrate Judge Mannion's determination that his Petition cannot proceed as a habeas petition under 28 U.S.C. § 2241.
A. Proceeding Directly Under 28 U.S.C. § 2241
Volcy argues that his Petition may proceed directly under Section 2241 as he "is not testing the validity of the judgment or the sentence but rather is specifically challenging the Warden['s] execution of a void judgment." (Objection at 2, Doc. 16.) While "[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution," Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), it is true that "federal prisoners challenging some aspect of the execution of their sentence, such as denial of parole, may proceed under Section 2241," Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (emphasis added). "Habeas corpus is the proper remedy if a petition does not attack the federal sentence itself, in which case the petitioner need not file a motion in the sentencing court under 28 U.S.C.A. § 2255, since the remedy by motion is inadequate or ineffective to test the legality of the petitioner's detention." 16A Fed. Proc., L. Ed. § 41:144. Although evaluated on a case-by-case basis, challenges to the execution of a sentence in the Third Circuit are not triggered by "garden variety" adjustments in the ...