United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
February 24, 2017, Magistrate Judge Numbers issued a
Memorandum and Recommendation ("M&R") [D.E. 5].
In that M&R, Judge Numbers recommended that the court
dismiss Alan Andrew Mackety's ("Mackety") 28
U.S.C. § 2241 petition. Mackety filed objections to the
M&R [D.E. 6].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Tns. Co.. 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond. 416F.3dat315
(quotation omitted). Moreover, the court need not conduct a
de novo review where a party makes only "general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations." Orpiano v. Johnson. 687 F.2d
44, 47 (4th Cir. 1982); see Wells v. Shriners Hosp..
109 F.3d 198, 200-01 (4th Cir. 1997). "Section 636(b)(1)
does not countenance a form of generalized objection to cover
all issues addressed by the magistrate judge; it contemplates
that a party's objection to a magistrate judge's
report be specific and particularized, as the statute directs
the district court to review only those portions of the
report or specified proposed findings or recommendations to
which objection is made." United States v.
Midgette. 478 F.3d 616, 621 (4th Cir. 2007) (emphasis
and quotation omitted).
objections reiterate arguments stated in his petition, and
his objections do not meaningfully rebut Judge Numbers'
recommendations. Compare [D.E. 1-1] 14-24,
with [D.E. 6] 1-7. Because Mackety's boilerplate
objections fail to meaningfully address the M&R, de novo
review is not required. See, e.g., Wells. 109 F.3d
at 200-01; Orpiano. 687 F.2d at 47.
Mackety's objections lack merit. Mackety pleaded guilty
to three counts of sexual abuse under 18 U.S.C. §
2242(1) in the United States District Court for the Western
District of Michigan. See United States v. Mackety
650 F.3d 621. 622 f6th Cir. 2011). On August 26, 2009, he was
sentenced to 300 months' imprisonment. Id. at
623; United States v. Mackety, No. 1:09-cr-92-RJJ
(W.D. Mich. Aug. 26, 2009) [D.E. 40]. Mackety appealed, and
the Sixth Circuit held that his sentence was procedurally
unreasonable and remanded for re-sentencing.
Mackety. 650 F.3d at 624-28. On October 13, 2011,
Mackety again received a 300-month sentence. United
States v. Mackety, No. 1:09-cr-92-RJJ (W.D. Mich. Oct.
13, 2011) [D.E. 69]. Mackety did not appeal.
October 29, 2012, Mackety filed a pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. Mackety v. United States. No.
1:12-cv-1180-RJJ (W.D. Mich. Oct. 29, 2012) [D.E. 1]. The
court denied the motion was denied, and the Sixth Circuit
denied Mackety's application for a certificate of
appealability. Mackety v. United States. No.
1:12-cv-1180-RJJ (W.D.Mich. Nov. 14, 2013) [D.E. 131:
Mackety v. United States. No. 1:12-cv-1180-RJJ (W.D.
Mich. June 3, 2014) [ D.E. 21]. On January 12, 2015, the
Supreme Court denied Mackety's petition for a writ of
certiorari. Mackety v. United States. 135 S.Ct. 978
31, 2016, Mackety filed his petition under 28 U.S.C. §
2241, alleging that Elonis v. United States. 135
S.Ct. 2001 (2015), renders his conviction invalid. In
Elonis. the Supreme Court interpreted 18 U.S.C.
§ 875(c), which makes it a crime to transmit in
interstate commerce "any communication containing any
threat... to injure the person of another." 18 U.S.C.
§ 875(c). The Supreme Court held that negligence was
insufficient to support a conviction under section 875(c) and
that a higher showing of intent was required.
Elonis. 135 S.Ct. at 2013. Mackety argues that
Elonis applies to his conviction because "[t]he
record of Petitioner's plea colloquy conclusively
demonstrates that the Government based its case on an alleged
threat." Pet'r. Mem. [D.E. 1-1] 7.
Mackety filed the current action under 28 U.S.C. § 2241,
he is attacking the legality, rather than the execution, of
his sentence. The court may consider a section 2241 motion
challenging the legality of Mackety's conviction and
sentence only if "the remedy by [section 2255] motion is
inadequate or ineffective to test the legality of his
detention." 28 U.S.C. § 2255(e); Rice v.
Rivera. 617 F.3d 802, 806-08 (4th Cir. 2010) (per
curiam); In re Jones. 226 F.3d 328, 332-34 (4th Cir.
2000); In re Vial. 115 F.3d 1192, 1194 (4th Cir.
1997) (en banc).
Mackety has already filed one section 2255 motion and the
Sixth Circuit has not authorized him to file
another, he is procedurally barred from raising his claims in
a section 2255 motion. See 28 U.S.C. § 2255(h);
United States v. Winestock. 340 F.3d 200, 205 (4th
Cir. 2003). Section 2255 is not rendered inadequate or
ineffective merely because a petitioner is procedurally
barred from filing a section 2255 motion. See,
e.g.. Vial. 115 F.3d at 1194 n.5. Rather, section
2255 is inadequate or ineffective when three conditions are
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
[section] 2255 motion, the substantive law changed such that
the conduct of which the prisoner was convicted is deemed not
to be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of [section] 2255 because the new rule
is not one of constitutional law.
Jones, 226 F.3d at 333-34. Even after
Elonis, the conduct to which Mackety pleaded
guilty-sexual abuse-remains criminal. Thus, Mackety cannot
establish that section 2255 is inadequate or ineffective.
even if the court considered the merits of Mackety's
petition, his argument fails. Mackety's argument that he
is actually innocent in light ofElonis is belied by
the stipulation in his plea agreement. In his plea agreement,
he stipulated to the following facts:
Between September of 2008 and November 22, 2008, the
Defendant, who was a duly enrolled member of the Nottawaseppi
Huron Band of Potawatomi Indians at the time, lived at
[address]... which is on lands held in trust by the United
States for the use and occupancy of the Nottawaseppi Huron
Band of Potawatomi Indians. On one occasion during this time
period, the Defendant took M.B. into his bedroom and took his
clothes off, then proceeded to take her clothes off and
performed the following sexual acts:  placed his mouth
in... M.B.'s vulva;  had M.B. place her mouth on his
penis; and  penetrated M.B.' s vagina with his penis.
Prior to this, the Defendant had threatened M.B. that if she
told anyone about the sexual assaults, she would be taken
away from her mother, and she and her stepbrother would then
be placed in foster care. M.B. was thirteen years of age at
the time of the incident. In February of 2009, during a phone
call to his wife, the Defendant admitted to sexually
Mackety. 650 F.3d at 622. Mackety's sworn guilty
plea (including the stipulation in the plea agreement)
forecloses his contention that he is actually innocent of
sexual abuse or that he did not threaten the victim. See,