1

 The clerk docketed the petition as a petition for writ of habeas corpus

under 28 U.S.C. § 2241 and the Magistrate Judge analyzed the petition as a motion

under 28 U.S.C. § 2241. Whether the petition is filed pursuant to the common law

or the statutory authority provided in 28 U.S.C. § 2241, because Madden has not

shown that a motion under section 2255 would be inadequate or ineffective the

analysis is the same in this case. See, e.g., United States v. LaPorta, 20 F. Supp.

2d 530, 533 (W.D.N.Y. 1998) (“The failure to utilize a statutory avenue for postconviction relief is not the situation the Supreme Court had in mind when it stated

that the All Writs Act provides courts with the authority to issue writs not otherwise

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TOY BURTRON MADDEN, :

: Case No. 4:05-CV-1741

Petitioner, :

: (Judge McClure)

v. :

: (Magistrate Judge Smyser)

RONNIE R. HOLT, Warden, :

:

Respondent :

O R D E R

December 8, 2005

BACKGROUND:

On August 26, 2005, petitioner Toy Burtron Madden, filed a petition for writ

of habeas corpus. Madden’s petition states that he is relying on the Great Writ of

the Common Law and he cites to the suspension clause, Art. I, Sec. 9, cl. 2 of the

United States Constitution for support for jurisdiction.1 Madden’s petition asserts:

Case 4:05-cv-01741-JFM Document 11 Filed 12/08/05 Page 1 of 5
covered by statute.”)

2

 Even if we were to consider the merits of Madden’s petition, this claim is

wholly without merit. The Magistrate Judge correctly notes that the holding of

Booker is not to be retroactively applied. Lloyd v. United States, 407 F.3d 608,

614-16 (3d Cir. 2005).

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(1) that he should be provided relief via the Great Writ and not a motion under 28

U.S.C. § 2255 because he is alleging treaty violations; (2) the holding of Booker v.

United States, 543 U.S. 220 (2005), should apply retroactively to his case;2 (3) that

because of the holding in Booker, Madden is actually innocent; and (4) that he

received ineffective assistance of counsel.

Madden is a federal prisoner. In 1994, Madden was convicted in the United

States District Court for the District of Maryland of bank robberies in violation of

18 U.S.C. § 2113. After exhausting direct review, Madden filed a series of postconviction challenges in the courts of the Third and Fourth Circuits. The instant

petition is his most recent challenge.

The petition was initially referred to United States Magistrate Judge J.

Andrew Smyser.

On November 18, 2005, the magistrate judge issued a nine-page report

recommending that the petition be dismissed and the case file be closed. 

Magistrate Judge Smyser recommends that the petition be dismissed without

Case 4:05-cv-01741-JFM Document 11 Filed 12/08/05 Page 2 of 5
3

 Madden makes a second argument in which he confuses the role of the

magistrate judge and the role of a respondent in a habeas corpus proceeding. (See

Rec. Doc. No. 10, at 3.)

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considering the substantive merits of the claims because they may be considered

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

On or about November 28, 2005, Madden filed a “Protest to the Entire

Report and Recommendation Motion to Dismiss Petitioner’s Unlawful Detention

Pleading.” (Rec. Doc. No. 10). Madden objects that the Magistrate Judge in his

report and recommendation does not address the merits of the claims he raises in

his petition.3

DISCUSSION:

I. RELEVANT LEGAL STANDARD

A district court reviews de novo those portions of a magistrate judge’s report

and recommendation to which a party objects. L.R. 72.3. The court may “accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” Id.

II. SECTION 2255 IS NOT INADEQUATE OR INEFFECTIVE 

We agree with the magistrate judge's determination that Madden's failure to

demonstrate that the remedy created in 28 U.S.C. § 2255 is inadequate or

Case 4:05-cv-01741-JFM Document 11 Filed 12/08/05 Page 3 of 5
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ineffective to test the legality of his detention precludes this court from considering

the merits of the claims asserted in his instant petition.

Madden’s reference to the International Covenant of Civil and Political

Rights does not alter that conclusion. The portion of that treaty relied upon by

Madden provides that “anyone who is deprived of his liberty by . . . detention shall

be entitled to take proceedings before a court, in order that the court may decide

without delay on the lawfulness of his detention and order his release if the

detention is not lawful.” International Covenant of Civil and Political Rights, Art. 9,

¶ 4. Initially, we note that it appears as though the requirements of that text were

met when Madden filed his appeal and his post-conviction motions.

To the extent that Madden contends that he is entitled to some further review

pursuant to that treaty, the treaty is not self-executing and therefore may not be

enforced in a court. See Macharia v. United States, 238 F. Supp. 2d 13, 29-30

(D.D.C. 2002) (“Courts have uniformly held that the ICCPR is not self-executing

and that, therefore, it does not give rise to a private right of action.”)

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. United States Magistrate Judge Andrew Smyser’s Report and

Case 4:05-cv-01741-JFM Document 11 Filed 12/08/05 Page 4 of 5
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 Recommendation is adopted in full. (Rec. Doc. No. 9.)

2. Madden’s petition for writ of habeas corpus is dismissed. (Rec. Doc.

No. 1.)

3. The Clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

 James F. McClure, Jr.

United States District Judge

Case 4:05-cv-01741-JFM Document 11 Filed 12/08/05 Page 5 of 5