Hinton v. Warden, United States Penitentiary - Hazelton, No. 2:2009cv00090 - Document 14 (E.D. Va. 2009)
Court Description: FINAL ORDER adopting findings and recommendations set forth in the U.S. Magistrate Judge's 7 Report and Recommendation; TRANSFERRING this matter to the U.S. District Court for the Northern District of West Virginia. Signed by District Judge Raymond A. Jackson and filed on 8/6/09. Copies mailed to petitioner and to respondent c/o U.S. Attorney for Northern District of West Virginia 8/7/09.(mwin, )
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Hinton v. Warden, United States Penitentiary - Hazelton Doc. 14 UNITED STATES DISTRICT COURT rlLtU FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division FRANK L. HINTON, AUG -6 20G9 CLERK. U.S. DISTRICT COURT #26366-083, Petitioner, v> ACTION NO. WARDEN, UNITED STATES 2:09cv90 PENITENTIARY - HAZELTON, Respondent. FINAL This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. Petitioner, ORDER § Frank 2241. L. Hinton, was convicted in the United States District Court for the Eastern District of Virginia, Norfolk Division. On February 14, 1995, the undersigned sentenced Petitioner to a prison term of 100 months after pleading guilty to one count of possession of violation of 18 U.S.C. § a firearm by a convicted felon, in 922(g)(l). The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B) and (C) , Rule 72 of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report Recommendation of the U.S. 2009, and recommendation. Magistrate Judge was The Report and filed on June 29, recommending that this matter be transferred to the United States District Court for the Northern District of West Virginia. Dockets.Justia.com This Court cannot exercise personal jurisdiction over Petitioner because he is currently incarcerated at United States Penitentiary - Hazelton, report, in Bruceton Petitioner objections to the Magistrate Judge. Magistrate Respondent was West advised of findings Virginia. his By right to and reconunendations copy file of the written made by the U.S. The Court has received an objection to the U.S. Judge's has Mills, Report not and filed an Recommendation objection, and the by Petitioner. time for doing so has now passed.1 On February 26, 2009, Hinton habeas corpus pursuant to 28 U.S.C. filed a petition for a writ § 2241. On March 12, Court received and filed four motions by Petitioner: for writ of prosequendum, habeas corpus, and motion one one for petition a bond for hearing. a of 2009, the two petitions writ of ad These motions 1 This case was originally styled as "Frank L. Hinton, #26366- 083 v. The United States District Court Norfolk, VA, et al." The U.S. Magistrate Judge, in his Report and Recommendation, ordered the Clerk of Court to substitute the current respondent, Warden, United States Penitentiary Hazelton, for the original respondents. The Warden of United States Penitentiary - Hazelton was not not yet been an original served proper respondent, respondent in as this to this action. action, and has The Warden, the proper respondent in a therefore however, 28 U.S.C. is § the 2241 case is the warden of the institution that exercises custody over the petitioner at the time the petition is filed. Rumsfeld v. Padilla. 542 U.S. 426, 434-35 (2004). To allow Respondent to object to the Report and Recommendation, on July 17, Report and Recommendation 2 009, the be mailed Court directed that to Respondent and the to Respondent's presumed counsel, the United States Attorney for the Northern District of West Virginia. The Court has received no response from either Respondent or the United States Attorney. were filed 2:94crlO6, on Petitioner's trial docket, Criminal Action No. and have subsequently been filed in the instant case. As set forth more fully in the U.S. Magistrate Judge's Report and Recommendation, arguments in it his appears that petitions. Petitioner First, makes Petitioner two essential argues that the undersigned misapplied the United States Sentencing Guidelines when he sentenced Petitioner. support 28 U.S.C. extraordinary Generally, § 2255 relief, circumstances, such as United States v. (4th Petitioner 1999). an argument does not but may support such relief given statutory maximum. Cir. such when a Preaent. argues that sentence exceeds 190 F.3d 279, he believed a 283-84 he would receive twenty-four months incarceration by entering a guilty plea, and that the undersigned's sentence of 100 was excessive. Second, Petitioner argues that he has already served the 100 month sentence and that he should therefore be released. Challenges execution of a sentence are properly § 2241 petitions. States v. The Court, objection report, portions Miller. filed and 871 F.2d 488, having by having reviewed Petitioner made objected to, 490 de (4th Cir. the to novo the record U.S. findings hereby adopts to the See United 1989). and examined Magistrate with respect the Judge's to the the findings and recommenda tions set forth in the report of the United States Magistrate Judge filed on June 29, 2009, and it is, therefore, ORDERED that this matter be TRANSFERRED to the United States District Court for the Northern District of West Virginia. The Clerk shall mail a copy of this Final Order to the petitioner and the respondent. Raymond A. Jackson United States District Judge UNITED STATES DISTRICT JUDGE Norfolk, Virginia ^ , 2009
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