MALACHY E. MANNION, District Judge.
Pending before the court is a report and recommendation, (Doc. No. 5), to which the petitioner has filed an objection. (Doc. No. 7). The report recommends that the petitioner's Petition for a Writ of Habeas Corpus brought pursuant to 28 U.S.C. §2241 be dismissed because the court lacks jurisdiction. The day after the report and recommendation was filed, the Third Circuit handed down U.S. v. Tyler, 732 F.3d 241, (3d Cir. 2013), a case that is directly on point and binding upon this court. As the report and recommendation was filed one day before the Tyler case was handed down, the Magistrate Judge did not have the benefit of its reasoning or holding. Therefore, the court DECLINES TO ADOPT the report and recommendation in light of this recent controlling precedent. The case is REMANDED to the magistrate judge to conduct appropriate proceedings in light of the Tyler opinion.
I. FACTUAL BACKGROUND
The petitioner is currently an inmate at USP-Lewisburg and is serving multiple sentences for a 1996 conviction out of the Western District of Tennessee. U.S. v. Bruce, 142 F.3d 437 (6th Cir. 1998). The counts relevant to this case were to charges for murder to prevent communication to a law enforcement official in violation of 18 U.S.C. §1512(a)(1). Id. His conviction was upheld in 1998 by the Sixth Circuit, Id., and his writ of certiorari was denied by the Supreme Court. Bruce v. U.S., 525 U.S. 882 (1998). The petitioner has filed numerous appeals with the Sixth Circuit challenging his conviction.
Most recently on August 2, 2013, the Sixth Circuit denied the petitioners second §2244(b) motion to file a second or successive motion under 28 U.S.C. §2255 based on Fowler v. U.S., 131 S.Ct. 2045 (2011). (Doc. No. 4). That court held that Fowler interpreted an issue of statutory rather than constitutional law and that no Supreme Court cases have held it applies retroactively on collateral review. (Id.). Finally, they held that because he filed a previous §2255 motion on February 28, 2012 and Fowler was decided on May 26, 2011, it was previously available and thereby cannot be raised in a subsequent §2255 motion. (Id.)
The thrust of the petitioner's claim is that Fowler and Tyler now makes his actions non-criminal relevant to his 18 U.S.C. §1512(a)(1) convictions and, as a result of those changes, he is actually innocent. (Doc. No. 7).
II. PROCEDURAL BACKGROUND
On September 12, 2013, the petitioner, Charles Gray Bruce, filed his pro se Petition for Writ of Habeas Corpus. (Doc. No. 1). The magistrate judge reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Court. 28 U.S.C. §2254. A report and recommendation was filed on October 2, 2013, (Doc. No. 5), and the petitioner timely filed an objection. (Doc. No. 7).
III. STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) ( citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) ( citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.
Originally enacted in 1948 as the equivalent of the habeas writ, 28 U.S.C. §2255 requires that a federal prisoner's request for collateral review of a conviction or sentence must be brought by motion in the district of the criminal court. The only exception allows a federal prisoner to bring a habeas petition if a §2255 motion proves "inadequate or ineffective" to test the legality of the petitioner's detention. 28 U.S.C. §2255; Davis v. United States, 417 U.S. 333, 343 (1974); Hill v. United States, 368 U.S. 424, 427 (1962); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997); Application of Galante, 437 F.3d 1164, 1165 (3d Cir. 1971).
In 1996, Congress imposed limitations on the availability of collateral attack of convictions and sentences through amendments to §2255. The amendments retained the original provisions of §2255 and, among other things, added restrictions on an inmate's ability to bring a second or successive motion. The amendments required that a second or successive motion must be certified by the appropriate court of appeals. Id . This "gatekeeping provision" restricts an inmate's ability to bring a second or successive motion by requiring the new motion to contain either newly discovered evidence that, if proven, would be sufficient to establish that the movant was not guilty, or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. Id . While inmates may attempt to circumvent the gatekeeping provisions ...