IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

DANIEL MILLER,

Petitioner,

v. 

WARDEN, FCI-TEXARKANA,

Respondent.

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CIVIL ACTION NO. 5:23-CV-37-RWS-JBB

ORDER

Petitioner Daniel Miller, proceeding pro se, filed the above-styled and numbered petition for 

the writ of habeas corpus under 28 U.S.C. § 2241 challenging aspects of his pre-sentence 

investigation report. Docket No. 1. The case was referred to the United States Magistrate Judge in 

accordance with 28 U.S.C. § 636.

Petitioner was convicted of drug crimes in the Western District of Arkansas, receiving 

concurrent sentences of 360 months in prison on December 2, 2011. See id. at 2. His conviction was 

affirmed on direct appeal and his motion to vacate or correct sentence was denied by the trial court 

on October 15, 2016. Id. at 13. 

In his habeas petition, Petitioner argues that his pre-sentence investigation report (PSR) was 

incorrect because it said he was on probation at the time of the present offenses when he was not, it 

said that he was convicted of burglary of a vehicle in Texas but he has never been convicted of a 

felony in Texas and a charge he had in Cass County, Texas was later dismissed, and the PSR said 

that his work history and background could not be substantiated but Petitioner has documents 

showing his work history from 1989, when he was 16, up to his arrest in 2011. Id. at 18–20.

Although Plaintiff argued that his petition challenged the way his sentence was being carried 

out, the Magistrate Judge issued a Report on February 26, 2024 stating that under Fifth Circuit 

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precedent, challenges to allegedly incorrect information in a pre-sentence investigation report fall 

under the purview of 28 U.S.C. § 2255, not § 2241. Docket No. 5 at 2. The Magistrate Judge also 

determined that the Court lacked jurisdiction to construe the petition as a motion to vacate or correct 

sentence under § 2255 and that Petitioner could not proceed under § 2241 through the savings clause 

of 28 U.S.C. § 2255. Id. at 3. Consequently, the Magistrate Judge recommended that the petition be 

dismissed. Id. at 4. 

Petitioner received a copy of this Report on March 1, 2024 (Docket No. 6), but no objections 

have been received. Accordingly, Petitioner is barred from de novo review by the District Judge of 

those findings, conclusions, and recommendations and, except upon grounds of plain error, from 

appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by 

the District Court. Duarte v. City of Lewisville, Texas, 858 F.3d 348, 352 (5th Cir. 2017); Arriaga v. 

Laxminarayan, Case No. 4:21-CV-00203- RAS, 2021 WL 3287683, at *1 (E.D. Tex. July 31, 2021).

The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. 

Upon such review, the Court has determined that the Report of the Magistrate Judge is correct. See 

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989) (where no 

objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, 

abuse of discretion and contrary to law.”) Accordingly, it is

ORDERED that the Report of the Magistrate Judge (Docket No. 5) is ADOPTED as the 

opinion of the District Court. It is further

ORDERED that the above-captioned § 2241 petition for the writ of habeas corpus is 

DISMISSED WITH PREJUDICE. This order of dismissal has no effect on Petitioner’s right to 

pursue his claims in the Western District of Texas, including but not limited to seeking permission 

from the Eighth Circuit Court of Appeals to file a successive petition.

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____________________________________

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT JUDGE

So ORDERED and SIGNED this 6th day of June, 2024.

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