United States District Court, D. Oregon
Loumard Harris, Petitioner, Pro se, SHERIDAN, OR.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
United States Magistrate Judge Patricia Sullivan issued Findings and Recommendation in this case on May 14, 2013. Dkt. 9. Judge Sullivan recommended that Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Dkt. 2) be summarily dismissed. Petitioner timely filed objections to the Findings and Recommendation (Dkt. 14) and requested leave to supplement his Petition and his Objections (Dkts. 13, 15, and 16), which the Court granted. On October 23, 2013, Petitioner filed his third motion for leave to supplement his Petition, Dkt. 19, which the Court hereby grants. For the reasons discussed below, the Court declines to adopt the Findings and Recommendation, does not summarily dismiss Petitioner's Petition, and appoints counsel for Petitioner.
STANDARDS FOR REVIEWING FINDINGS AND RECOMMENDATION
Under the Federal Magistrates Act (" Act" ), the Court may " accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings
and recommendations, " the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).
For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (" There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report[.]" ); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (the court must review de novo magistrate's findings and recommendations if objection is made, " but not otherwise" ). Although in the absence of objections no review is required, the Act " does not preclude further review by the district judge sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that " [w]hen no timely objection is filed," the Court review the magistrate's recommendations for " clear error on the face of the record."
Petitioner is an inmate at the Federal Correctional Institute, Sheridan. On November 4, 2003, he was sentenced in the Southern District of Indiana to fifteen years to life arising out of his conviction for being a felon in possession in violation of 18 U.S.C. § 922(g)(1). Petitioner's sentence was increased from what would otherwise have been a ten-year maximum sentence because he was classified as a career offender. Petitioner alleges that his classification as a career offender was based in part on his previous conviction for criminal recklessness.
Filing pro se in the Southern District of Indiana, Petitioner challenged his sentence under 28 U.S.C. § 2255. This challenge was denied on February 23, 2007. Petitioner then filed, again pro se, in the Southern District of Indiana additional motions under § 2255, which were denied based on the prohibition under § 2255(h) against subsequent motions without leave of the appellate court. On April 16, 2013, Petitioner filed pro se before this Court the pending § 2241 Petition, challenging the legality of his sentence in light of the United States Supreme Court decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), regarding what constitutes an appropriate underlying offense for purposes of career offender classification.
" A federal prisoner who seeks to challenge the legality of confinement must generally rely on a § 2255 motion to do so." Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). The restrictions on the availability of § 2255 motions cannot be avoided by filing a petition for relief under § 2241. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). There is a narrow exception to this general rule, however, under the " escape hatch"  provision of § 2255, which permits a federal prisoner to file a § 2241 petition if the remedy under § 2255 is " inadequate or ineffective to test the legality of [the prisoner's] detention." 28 U.S.C. § 2255(e). In the Ninth Circuit, a prisoner may file a ...