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Malone v. Warden FCI Sandstone

United States District Court, D. Minnesota

April 3, 2019

Dennell Malone, Petitioner,
v.
Warden FCI Sandstone, Respondent.

          DENNELL MALONE, PRO SE.

          ANN M. BILDTSEN AND ANA H. VOSS, UNITED STATES ATTORNEY FOR RESPONDENT.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Objection (“Objection”) [Doc. No. 6] of Petitioner Dennell Malone to Magistrate Judge Becky Thorson's Report and Recommendation (“R&R”) dated February 27, 2019 [Doc. No. 5] recommending that Malone's Pro Se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Petition”) [Doc. No. 1] be denied for lack of jurisdiction. For the reasons set forth below, and after a de novo review, the Court adopts the R&R, overrules Malone's Objection, and denies Malone's Petition without prejudice.

         I. Background

         In 1995, Malone was found guilty after a jury trial in the United States District Court for the District of Minnesota on nine counts of drug distribution, conspiracy to commission murder for hire, and possession of a firearm in connection with a crime of violence. (R&R at 1.) Initially, Malone was sentenced to life imprisonment, with an additional consecutive 60 months sentence of imprisonment for the gun offense. (Id. at 1- 2.) However, due to certain amendments to the United States Sentencing Guidelines, his sentence was reduced to 352 months. (Id. at 2.)

         Malone has previously attempted to challenge the validity of his conviction and sentence under 28 U.S.C. § 2255. (Id.) Malone's first § 2255 petition was granted in part, but his overall sentence was not reduced as a result. (Id.) Malone failed to file a timely notice of appeal of that decision. (Id.) Since then, Malone has requested to file second or successive motions under § 2255. (Id.) Specifically, in 2016, Malone requested that he be allowed to file a § 2255 motion pursuant to Johnson v. United States, 135 S.Ct. 2251 (2015). (Id.) However, each of Malone's requests has been reviewed and denied by the Eighth Circuit. (Id.)

         In a thorough and well-reasoned R&R, Magistrate Judge Thorson recommended that Malone's Petition be dismissed for lack of jurisdiction. (Id. at 7.) Malone asserts that he was not served with a copy of the R&R until March 7, 2019. (Obj. at 1.) Thus, on March 18, 2019, Malone filed a timely Objection to Magistrate Judge Thorson's R&R.

         II. 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). “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). Then, the district court will review de novo those portions of the R&R to which an objection is made, and it “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b)(3).

         B. Analysis

         In his Objection, Malone sets forth two arguments as to why this Court should decline to adopt the R&R. First, Malone contends that because his requests to file a motion under § 2255 were denied by the Eighth Circuit, a § 2255 motion is “inadequate and ineffective in his case.” (Obj. at 3.) Second, Malone asserts, in the alternative, that the Court should stay its ruling on this matter until the Supreme Court has decided United States v. Davis, 903 F.3d 483 (5th Cir. 2018), cert. granted, 139 S.Ct. 782 (No. 18-431), as its result may implicate his sentence. (Id.)

         “[A] collateral challenge to a federal conviction or sentence must generally be raised in a motion to vacate filed in the sentencing court under § 2255 . . . and not in a habeas petition filed in the court of incarceration . . . under § 2241.” Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003) (citation omitted). If a federal prisoner brings his claim in the court of incarceration under § 2241, the Court cannot entertain the petition unless the prisoner first shows “that § 2255 would be inadequate or ineffective, ” or that the savings clause applies. Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004) (citing Hill, ...


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