United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
Presently before the Court is Magistrate Judge Schwab's Report and Recommendation ("R & R") (Doc. 16) to Petitioner Bruce Turner's Petition for Writ of Habeas Corpus (Doc. 1). The Magistrate Judge recommends that the Petition be dismissed. Petitioner filed timely objections to the R & R (Doc. 17). Because relief under 28 U.S.C. § 2241 is not available to Petitioner, the Petition for a writ of habeas corpus will be dismissed.
On April 11, 2013, Petitioner, an inmate at Allenwood Federal Correctional Institution, filed, pro se, the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. 1.) In July of 2006, Petitioner was sentenced to 211 months imprisonment pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Petitioner now challenges his sentence pursuant to the ACCA, arguing that "there no longer exists any more than two" predicate qualifying ACCA convictions. (Doc. 1, ¶ 15). Specifically, Petitioner contends that his simple assault and battery conviction is not an ACCA predicate.
II. Relevant Procedural History
As set forth in Magistrate Judge Schwab's R & R, in July of 2006, Petitioner was sentenced to 211 months imprisonment under the ACCA based on four state predicate convictions: (1) 1990 assault and battery with a dangerous weapon, (2) 1994 assault and battery with a dangerous weapon, (3)1999 simple assault and battery, and (4) 2001 possession of a Class B substance with intent to distribute. Petitioner appealed this sentence but the First Circuit affirmed, and the United States Supreme Court denied his petition for a writ of certiorari.
In September of 2008, Petitioner filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, claiming he was provided ineffective assistance of counsel and that his sentence under the ACCA was improper because certain prior underlying state convictions used as predicate offenses were procured in violation of the Constitution. Petitioner amended his § 2255 motion to add a claim of ineffective assistance of counsel. On May 13, 2010 Petitioner filed a second motion to amend, detailing his counsel's failure to object to the use of assault and battery and assault and battery with a deadly weapon as violent felonies under the ACCA. On June 28, 2011, the district court denied Petitioner's § 2255 motion, rejecting Petitioner's claims of ineffective assistance of counsel and that his sentence under the ACCA was invalid because two of his predicate convictions under the ACCA were invalid.
Petitioner appealed this decision but the First Circuit affirmed the district court. On appeal, Petitioner characterized his second motion to amend his original § 2255 motion as raising an attack on his ACCA sentence based on the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1(2010). The First Circuit determined that Petitioner failed to raise this claim in the district court and had thus forfeited it.
III. The Report and Recommendation
On March 7, 2014, Magistrate Judge Schwab issued an R&R recommending that the instant Petition be dismissed. Magistrate Judge Schwab concludes that Petitioner's claim that he is "innocent" of the ACCA is not the type of claim that a federal prisoner can bring by way of a § 2241 habeas petition. Petitioner filed timely objections to the R & R. (Doc. 17.) As such, Magistrate Judge Schwab's recommendations, and Petitioner's objections thereto, are ripe for disposition.
A. 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)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (emphasis added). In conducting a 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 law 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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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. ...