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Bauer v. Weber

United States District Court, Eighth Circuit

May 30, 2013

SCOTT BAUER, Petitioner,
v.
DOUGLAS WEBER, Warden, South Dakota State Penitentiary; and MARTY J. JACKLEY, Attorney General, State of South Dakota, Respondents.

ORDER VACATING JUDGMENT AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

KAREN E. SCHREIER, District Judge.

Petitioner, Scott Bauer, filed a pro se petition for relief under 28 U.S.C. § 2241 on July 28, 2011, in the Eastern District of Virginia. Docket 1. On February 22, 2012, Bauer's § 2241 petition was transferred to the District of South Dakota (Docket 13), and shortly thereafter, this court referred the petition to United States Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for the purposes of conducting any necessary hearings and issuing a report and recommendation for the disposition of Bauer's § 2241 petition (Docket 16). On September 7, 2012, Magistrate Judge Simko issued a report and recommendation finding that the subject matter of Bauer's petition was "outside the boundaries of relief which may be sought through a § 2241 Petition." Docket 21 at 3. Moreover, Judge Simko found that Bauer's actual innocence claim failed on the merits. Id. at 5-6.

On September 25, 2012, the court granted Bauer an extension of time to respond to the magistrate judge's report and recommendation. Docket 22; Docket 23. At the expiration of the November 26, 2012 deadline, however, the court had not received Bauer's objections. Accordingly, on December 6, 2012, the court adopted Judge Simko's report and recommendation and dismissed Bauer's § 2241 petition. Docket 24. Then, on December 26, 2012, the court received Bauer's objections, which indicated that he had actually mailed his objections on November 20, 2012. Docket 25 at 19-20. Bauer brought this to the court's attention in a motion for relief from judgment, wherein he represented that he delivered two copies of his objections to the prison mail room on November 20, 2012. Docket 26. After a series of extensions (Docket 28; Docket 30), the defendants responded in opposition to Bauer's motion for reconsideration (Docket 31).

DISCUSSION

For the reasons set forth below, the court grants Bauer's motion for relief from judgment and vacates its order dated December 6, 2012, so it may consider on the merits Bauer's objections to the magistrate judge's report and recommendation. After reviewing Bauer's objections to Magistrate Judge Simko's report and recommendation, the court finds that Bauer is not entitled to relief under 28 U.S.C. § 2241.

I. Bauer's Motion for Relief from Judgment Is Granted; the Court Vacates the December 6, 2012, Order Dismissing Bauer's Case.

Pursuant to Federal Rule of Civil Procedure 60(b), Bauer has requested relief from this court's order of dismissal. Docket 26. Rule 60(b) permits the court to "relieve a party... from a final judgment, order, or proceeding" for various enumerated reasons, including "any... reason that justifies relief." Here, the court entered its order of dismissal on December 6, 2012, because it had not received Bauer's objections to the magistrate judge's recommendation that Bauer's § 2241 petition be denied. The court later discovered, however, that Bauer did in fact file his objections in a timely manner by delivering his objections to prison authorities on November 20, 2012, well before the November 26, 2012 deadline for objections. Under the prison mailbox rule, a document filed by a pro se prisoner is "filed" at the time the prisoner delivers the document to prison authorities for forwarding to the court. Houston v. Lack, 487 U.S. 266, 276 (1988). Accordingly, Bauer's objections to Judge Simko's report and recommendation were timely. The court therefore vacates its order dated December 6, 2012 (Docket 24) to consider Bauer's objections (Docket 25) to the report and recommendation.

II. The Court Adopts Magistrate Judge Simko's Report and Recommendation.

The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Pursuant to 28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely made and specific. See Fed.R.Civ.P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

In the instant case, Bauer objects to Magistrate Judge Simko's finding that the district court lacks jurisdiction to entertain Bauer's § 2241 petition. Docket 25 at 1. Bauer maintains that the district court has jurisdiction to consider his § 2241 petition because (1) he is asserting a claim of actual innocence, and (2) he never had an unobstructed procedural opportunity to raise the claim. Id. at 2-11. Alternatively, Bauer argues that the court has jurisdiction to consider his § 2241 petition pursuant to the "miscarriage of justice" exception. Id. at 11-12. Bauer also objects to the magistrate judge's finding that, even if the court had jurisdiction to consider Bauer's § 2241 petition, Bauer would not be entitled to relief since he failed to establish that he was actually innocent of the charges which were dismissed in exchange for Bauer's guilty plea. Id. at 12-15. Finally, Bauer objects to the magistrate judge's finding that the ruling in Watson v. United States, 552 U.S. 74 (2007), was not retroactive to cases on collateral review. Id. at 15-19. The court has reviewed de novo the issues raised by Bauer's objections.

A. The District Court Does Not Have Jurisdiction to Consider Bauer's § 2241 Petition.

In his first objection, Bauer asserts that the district court does, in fact, have proper jurisdiction to consider his § 2241 petition because the petition was filed pursuant to the "savings clause" found at § 2255(e), which states as follows:

[an application for habeas relief] shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

According to Bauer, the relief afforded to him by his original § 2255 petition was inadequate or ineffective because his attorney failed to amend the § 2255 petition to include a claim for actual innocence under Watson v. United States, 552 U.S. 74 (2007)-a Supreme Court case decided during the pendency of Bauer's § 2255 petition and holding that "given ordinary meaning and the conventions of English, ... a person does not use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs."[1] Watson, 552 U.S. at 83. In other words, Bauer asserts that the ineffective ...


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