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Marcusse v. Warden FCI Waseca

United States District Court, D. Minnesota

March 13, 2018

Janet Mavis Marcusse, Petitioner,
v.
Warden FCI Waseca, Respondent.

          Janet M. Marcusse, Pro Se.

          Anna H. Voss, United States Attorney for Respondent.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on the Objection [Doc. No. 6] of Petitioner Janet Mavis Marcusse to United States Magistrate Judge Leo I. Brisbois's Report and Recommendation (“R&R”) dated November 16, 2017 [Doc. No. 5]. The magistrate judge recommended that Marcusse's Petition for Writ of Habeas Corpus (“Petition”) [Doc. No. 1] be dismissed without prejudice for lack of jurisdiction.

         Pursuant to statute, this Court reviews de novo any portion of the magistrate judge's R&R to which specific objections are made, and “may accept, reject, or modify, in whole or in part, the findings or recommendations” contained in that R&R. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). For the reasons stated herein, the Court overrules Petitioner's Objection and adopts the R&R in its entirety.

         II. BACKGROUND

         The facts underlying this case are accurately detailed in the R&R, the background section of which the Court incorporates by reference here. Briefly stated, Petitioner was convicted in 2005 in the Western District of Michigan of 60 counts of fraud and money laundering in connection with a Ponzi scheme through which she stole over $12 million from her investors. (R&R at 1.) She was sentenced to a total of 25 years' imprisonment, and her conviction and sentence were upheld by the Sixth Circuit. See Marcusse v. United States, 785 F.Supp.2d 654, 660 (W.D. Mich. 2011).

         Following her conviction, Petitioner initiated a lengthy series of legal challenges, including the petition presently before the Court. (R&R at 1.) Before her direct appeal she moved for a judgment of acquittal based on insufficiency of the evidence. (Id.) After her direct appeal, she sought relief under 28 U.S.C. § 2255, raising thirty separate grounds which were analyzed carefully and rejected by the federal district court in Michigan. See Marcusse, 785 F.Supp. at 678. Among other filings, she subsequently requested leave to file at least five additional or amended § 2255 motions, all of which were rejected by the Sixth Circuit. (R&R at 2.) Prior to the present action she also filed two other habeas petitions in the Northern District of Florida, where she was previously incarcerated. See Marcusse v. Warden FCI Tallahassee, No. 4:14CV301-MW/CAS, 2016 WL 7634460 (N.D. Fla. Nov. 23, 2016).

         The matter now before the Court is Petitioner's third Petition for Writ of Habeas Corpus. Magistrate Judge Brisbois recommends that the Court dismiss the Petition without prejudice because the Court lacks jurisdiction to hear a federal prisoner's collateral challenge to her original sentence by a habeas petition when § 2255 provides an adequate or effective means to test the legality of the conviction. (R&R at 2.)

         Petitioner timely filed an Objection to the R&R. The Objection generally alleges that the Court has jurisdiction to consider her Petition under § 2255(e). (Obj. at 1.) The Government responded, urging the Court to adopt the R&R in its entirety. (Resp't Resp. [Doc. No. 8] at 1.)

         III. DISCUSSION

         A. Standard of Review

         Upon issuance of an R&R, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis added). “The objections should specify the portion of the magistrate judge's [R&R] to which objections are made and provide a basis for those objections.” Mayer v. Walvatne, No. 07-cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely parrot arguments already presented to and considered by the magistrate judge are not entitled to de novo review. Dunnigan v. Fed. Home Loan Mortg. Corp., No. 15-cv-2626 (SRN/JSM), 2017 WL 825200, at *3 (D. Minn. Mar. 2, 2017) (citing Mashak v. Minnesota, No. 11-cv-473 (JRT/JSM), 2012 WL 928251, at *2 (D. Minn. Mar. 19, 2012)). Furthermore, when presenting arguments to a magistrate judge, parties must put forth “not only their ‘best shot' but all of their shots.” Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, ...


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