Pearce v. Tate

• Court: District Court, N.D. West Virginia
• Decided: February 22, 2024
• Docket: 5:24-cv-00020
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling

ROBERT ANDREW PEARCE, Petitioner, V. CIVIL ACTION No. 5:24-CV-20 Judge Bailey DIDYMUS TATE, Superintendent, Eastern Regional Jail, Respondent.

ORDER The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 5]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his R&R on February 8, 2024, wherein he recommends that the petition be denied and dismissed without prejudice, or, in the alternative, that the petition be construed as one brought under § 2241. For the reasons that follow, this Court will adopt the R&R. |. BACKGROUND’ & STANDARD OF REVIEW Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made.

‘ This Court fully adopts and incorporates herein the “Factual and Procedural History” section of the R&R. See [Doc. 5 at 1-2].

However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1971). Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. Petitioner timely filed an objection [Doc. 6] on February 22, 2024. Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

ll. DISCUSSION In the R&R, after providing a backdrop for § 2254 petitions, Magistrate Judge Mazzone found that “petitioner's claims should be brought, if at all, under 28 U.S.C. § 2241.” [Doc. 5 at 6]. In support, Magistrate Judge Mazzone stated: Here, petitioner's challenge is based on the state’s failure to observe the 180-day limit set by Article III of the act. However, as a petitioner has not yet been convicted and sentenced by the State, the undersigned finds that his claim is not properly brought under § 2254. Under § 2254(a), The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (emphasis added). Here, petitioner is a pretrial detainee and is not in custody “pursuant to the judgment of a State court.” [Id. at 5-6]. In his objection, petitioner states that he “does not object to the characterization or recitation of the facts of this matter’ and “does not object to the legal analysis discussed. .. .” [Doc. 6 at J] 1-2]. Petitioner states “the only portion of the [R&R] with which [he] takes issue is recommendation that the Petition for Habeas Relief be denied.” [Id. at Petitioner “requests that the petition be construed as one brought under § 2241

as the said code section does appear to better suit circumstances of his detention[.]’ [Id. at { 6]. This Court agrees with Magistrate Judge Mazzone that petitioner's claim is not properly brought under § 2254. Thus, this Court will construe the petition as one brought under § 2241. lll. CONCLUSION Aside from the arguments addressed herein, a de novo review of the record indicates that the magistrate judge’s report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 5] is hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. The Petition [Doc. 1] will hereby be CONSTRUED as a § 2241 Petition. It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record. DATED: February 2, 2024.

JOAN PRESTON BAILEY > UNIFED-SFATES DISTRICT JUDGE