IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT PETER RUSSELL, :

:

 Petitioner : No. 4:05-CV-2294

 :

v. : Petition Filed 11/3/05

 :

TROY WILLIAMSON, Warden, : (Judge Muir)

:

 Respondent :

ORDER

January 10, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 3, 2005, Petitioner Robert Peter Russell,

an inmate at the United States Penitentiary-Allenwood, White

Deer, Pennsylvania, filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. In the petition Russell challenges

a judgment of conviction and sentence imposed on him by the

United States District Court for the Eastern District of

Virginia. Russell claims the trial court lacked jurisdiction to

convict him and that, therefore, his conviction and sentence are

null and void. The Clerk of Court assigned responsibility for

this case to us but referred it to United States Magistrate Judge

J. Andrew Smyser for preliminary consideration.

On December 28, 2005, Magistrate Judge Smyser filed a

report recommending that Russell's petition for writ of habeas

corpus be dismissed and the case file closed. Russell filed

objections to that report. No separate brief in support of the

objections was filed by Russell in accordance with the Local

Rules 72.2 and 72.3. Although we could deem the objections

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withdrawn because Russell failed to file a brief at the same time

as the objections in accordance with the Local Rules, we will

consider Russell’s objections. 

When objections are filed to a report of a magistrate

judge, we make a de novo determination of those portions of the

report or specified proposed findings or recommendations made by

the magistrate judge to which there are objections. United

States vs. Raddatz, 447 U.S. 667 (l980); 28 U.S.C. §636(b)(l);

Local Rule 72.3l. District judges have wide discretion as to how

they treat recommendations of the magistrate judge. Id. Indeed,

in providing for a de novo review determination rather than a de

novo hearing, Congress intended to permit whatever reliance a

district judge, in the exercise of sound discretion, chooses to

place on a magistrate judge's proposed findings and

recommendations. Id. See also Mathews vs. Weber, 423 U.S. 26l,

275 (l976); Goney vs. Clark, 749 F.2d 5, 7 (3d Cir. l984).

In 1991 Russell was found guilty in the United States

District Court for the Eastern District of Virginia of the firstdegree murder of his wife, an officer in the United States Marine

Corps. On August 2, 1991, Russell was sentenced to life

imprisonment. The Court of Appeals for the Fourth Circuit

affirmed Russell's conviction and the United States Supreme Court

declined to review the case. 

Russell filed a motion pursuant to 28 U.S.C. § 2255. 

On January 12, 1994, that motion was denied by the United States

District Court for the Eastern District of Virginia. On January

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5, 2001, Russell file a motion for authorization to file a

successive § 2255 motion. By an order dated March 2, 2001, the

United States Court of Appeals for the Fourth Circuit denied

Russell's application to file a successive § 2255 motion. 

Magistrate Judge Smyser correctly observes in his

report that Russell must pursue any challenge to his conviction

by way of a motion filed pursuant to 21 U.S.C. § 2255. Although

Russell has previously filed a § 2255 motion which was denied,

that fact does not allow him to challenge his conviction by way

of a petition for writ of habeas corpus under 21 U.S.C. § 2241. 

Litterio vs. Parker, 369 F.2d 395, 396 (3d Cir. 1966)(sentencing

court's prior denial of claims does not render § 2255 remedy

inadequate or ineffective). 

The objections filed by Russell are basically a repeat

of his arguments before Magistrate Judge Smyser. In an 11-page

report Magistrate Judge Smyser explained why the petition should

be dismissed. That report adequately addresses the issues. We

note that Russell had previously filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 challenging his

conviction - Russell v. Pugh, 4;03-CV- 1602 (M.D.Pa.). By order

of December 11, 2003, we dismissed that petition and the Court of

Appeals for this circuit affirmed that dismissal on July 12,

2005. The present petition is a successive filing and an abuse

of the writ of habeas corpus.

Magistrate Judge Smyser was correct in recommending

that the petition filed in the above-captioned case be dismissed.

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The report of Magistrate Judge Smyser is free from error. 

Because we find no error in Magistrate Judge Smyser's report we

shall adopt it as our own. 

Finally, because Russell is not detained because of

process issued by a state court and the petition is not brought

pursuant to 28 U.S.C. § 2255, no action by this court with

respect to a certificate of appealability is necessary.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The report of Magistrate Judge J. Andrew Smyser

filed on December 28, 2005, is adopted in toto.

2. Russell's petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 is dismissed.

3. The Clerk of Court shall send a copy of this order

to Magistrate Judge Smyser.

4. The Clerk of Court shall close this case.

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:gs

 

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