The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOEL K. PARKER,
Petitioner,
v. Civil Action No. 2:23-cv-00695
ROBERT BROWN,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is petitioner Joel K. Parker’s petition for
writ of habeas corpus pursuant to 28 U.S.C. section 2241 (ECF
No. 1), filed October 20, 2023. As a habeas action, this
proceeding was previously referred to the Honorable Cheryl A.
Eifert, United States Magistrate Judge, for submission of
proposed findings and recommendations (“PF&R”). Judge Eifert
filed a PF&R (ECF No. 6) on March 12, 2024, to which neither
party has objected.
Petitioner was tried and convicted in June, 2010, by
the United States District Court for the District of Nevada for
two counts of assaulting, resisting, or impeding certain
officers or employees in violation of 18 U.S.C. section 111 and
was sentenced to 180 months imprisonment by that court on
October 6, 2010. PF&R at 1–2. Petitioner filed the petition in
this action in October 2023, while incarcerated in Glenville,
West Virginia. PF&R at 3. In January 2024, petitioner notified
the court that he was housed temporarily in Victorville,
California, while in transit, and later that month he notified
the court that he had arrived at his new place of incarceration
in Lompoc, California. PF&R at 3.
Judge Eifert sua sponte determined that venue in the
Southern District of West Virginia is improper, as petitioner
was incarcerated in the Northern District of West Virginia when
the petition was prepared and mailed and is now incarcerated in
California. PF&R at 5. While acknowledging that in some
instances it would be proper to transfer such a proceeding to
the proper venue, Judge Eifert recommends that the proceeding be
dismissed because: (1) petitioner’s challenge to the validity of
his conviction must be pursued under a section 2255 petition
(rather than this section 2241 petition); (2) the petition does
not contain the necessary information for what would be a
successive section 2255 petition, precluding recharacterization
by the court; and (3) recharacterization would be futile, as the
petition contains no potentially meritorious claim. PF&R at 6–
8. Thus, Judge Eifert recommends that the petition be dismissed
without prejudice. PF&R at 8.
The court need not review, under a de novo or any
other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the findings and
recommendations to which no objection has been addressed. See
Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”) (emphasis added). Failure to timely file objections
constitutes a waiver of de novo review and the plaintiff’s right
to appeal the order of the court. See 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).
Objections in this case having been due March 29, 2024, and none
having been filed, this matter may be duly adjudicated.
Accordingly, it is ORDERED that:
1. The findings and recommendations made in the
magistrate judge’s Proposed Findings and
Recommendations be, and hereby are, ADOPTED by the
court and incorporated herein;
2. The petitioner’s section 2241 habeas petition be, and
it hereby is, DENIED; and
3. This action be, and it hereby is, DISMISSED without
prejudice from the docket of this court.
The Clerk is directed to transmit copies of this order
to all counsel of record, any unrepresented parties, and the
United States Magistrate Judge.
ENTER: April 2, 2024
sh nll ree
Jo . Copenhaver, Jr.
Senior United States District Judge