United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
C. BRACK UNITED STATES DISTRICT JUDGE.
Judge William P. Lynch filed his Proposed Findings and
Recommended Disposition on August 25, 2017. (Doc.
130.) The proposed findings notify Petitioner of
his ability to file objections and that failure to do so
waives appellate review. To date, Petitioner has not filed
any objections, and there is nothing in the record indicating
that the proposed findings were not delivered.
Teague has filed several other motions that remain pending at
this time: a Motion to Appoint Counsel and Obtain
Transcripts, filed on August 18, 2016 (Doc. 89); a Motion for
Leave to File an Amended Petition, filed on January 9, 2017
(Doc. 128); and a Motion to Recharacterize Action as Petition
Under 28 U.S.C. § 2241, ” filed on October 19,
de novo review of the record and the Proposed
Findings and Recommended Disposition (PFRD), the Court will
(1) deny Mr. Teague's pending motions (Docs. 89, 128,
133), (2) adopt the Magistrate Judge's PFRD (Doc. 130),
and (3) dismiss this case with prejudice.
Background and PFRD
Court notes that there is a thorough summary of the
procedural history of Mr. Teague's pre-trial, trial, and
post-trial proceedings (including his motion to vacate
pursuant to § 2255) in the July 24, 2007 Magistrate
Judge's PFRD. (United States v. Teague, 07cv0326
RB/LCS, PFRD (D.N.M. July 24, 2007).) The Court incorporates
the summary here by reference.
2016 Verified Petition for Writ of Error Coram Nobis, Mr.
Teague contends that his conviction should be overturned
because he received ineffective assistance of counsel.
(See Doc. 82.) After reviewing the record and the
relevant law, the magistrate judge concluded that the Court
should deny Mr. Teague's Petition, because he “has
not exercised due diligence in raising the issue and the
issue is therefore waived.” (Doc. 130 at 5.)
to Rule 72(b) the parties had 14 days to file objections
after Judge Lynch filed the PFRD. Fed.R.Civ.P. 72(b).
“Objections must be timely and specific to preserve an
issue for de novo review by the district court or
for appellate review.” Neihart v. United
States, No. CV 16-708 WJ/CG, 2017 WL 3726765, at *2
(D.N.M. Aug. 28, 2017) (citing United States v. One
Parcel of Real Prop., with Bldgs., Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1060 (10th
Cir. 1996)). “Additionally, issues ‘raised for
the first time in objections to the magistrate judge's
recommendation are deemed waived.'” Id.
(quoting Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996) (internal citations omitted); citing
United States v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001) (“In this circuit, theories raised for
the first time in objections to the magistrate judge's
report are deemed waived.”) (quoting Marshall,
75 F.3d at 1426)).
Motion to Recharacterize
Teague did not file objections within the 14-day period.
Instead, he filed a “Motion to Recharacterize Action as
Petition Under 28 U.S.C. § 2241.” (Doc. 133.) It
is clear to the Court that Petitioner's Motion is simply
a veiled attempt to circumvent the Magistrate Judge's
PFRD. Consequently, the Court will construe this Motion as
objections to the PFRD and will deny the Motion. Even if the
Court construed the Motion as one pursuant to § 2241,
the Court would dismiss it without prejudice on the grounds
that it lacks jurisdiction, because Petitioner has not shown
that a § 2255 motion is inadequate.
Construed as Objections
explained, theories raised for the first time in objections
are deemed waived.” Neihart, 2017 WL 3726765,
at *4 (citing Marshall, 75 F.3d at 1426;
Garfinkle, 261 F.3d at 1031). In his new Motion, Mr.
Teague asks the Court to treat his Verified Petition for Writ
of Error Coram Nobis as a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241. (Doc. 133.) The only law he
cites is on § 2255(e)'s savings clause.
(Id. (citing Triestman v. United States,
124 F.3d 361, 377 (2d Cir. 1997) (finding that “§
2255 is inadequate or ineffective to test the legality of
[the prisoner's] detention, ” so the prisoner was
“entitled to raise his claim of actual innocence in a
petition for a writ of habeas corpus”).) The Tenth
Circuit has explained:
Following AEDPA's enactment, federal prisoners who are
barred from bringing second or successive § 2255 motions
may still be able to petition for habeas relief under §
2241 through the mechanism of § 2255(e)'s savings
clause. “To fall within the ambit of [the] savings
clause and so proceed to § 2241, a prisoner must show
that ‘the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of his
detention.'” Prost [v. Anderson],
636 F.3d [578, ] 581 (10th Cir. 2011)] (second alteration in
original) (quoting 28 U.S.C. § 2255(e)). Section 2255,
however, has been found to be “inadequate or
ineffective” only in “extremely limited
circumstances.” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999); see Brace [v.
United States, 634 F.3d 1167');">634 F.3d 1167, ] 1169 [(10th Cir. 2011)]
(stating that “§ 2255 will rarely be an inadequate
or ineffective remedy to challenge a conviction”). In
Prost, we set forth our test: we ask “whether
a petitioner's argument challenging the legality of his
detention could have been tested in an initial § 2255
motion. If the answer is yes, then the petitioner may not
resort to the savings clause and § 2241.” 636 F.3d
Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir.
2013). Petitioner carries the “burden to show that he
meets § 2255(e)'s savings clause.”
Id. (citing Prost, 636 F.3d at 584). Mr.
Teague makes no effort to show he meets the savings clause.
Nor does the Court find he would be able to make such a
showing. Petitioner's argument regarding ineffective