United States District Court, D. Minnesota
M. Marcusse, Pro Se.
H. Voss, United States Attorney for Respondent.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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.)
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.)
Standard of Review
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, ...