Montalvo v. Werlizh

Full title: JOSE MANUAL MONTALVO, Petitioner, v. THOMAS WERLIZH, Respondent

Court: United States District Court, W.D. Oklahoma

Date published: Sep 13, 2011

Case No. CIV-11-773-R (W.D. Okla. Sep. 13, 2011)

Opinion

Case No. CIV-11-773-R.

September 13, 2011

ORDER

DAVID RUSSELL, District Judge

Before the Court are the Report and Recommendation of United States Magistrate Judge Gary M. Purcell [Doc. No. 12] and Petitioner's "response" or objection to the Report and Recommendation [Doc. No. 14].

Petitioner's entire objection is devoted to attempting to show, for the first time, that the remedy under 28 U.S.C. § 2255 is inadequate or ineffective so that the Court will entertain his 28 U.S.C. § 2241 petition challenging the validity of Petitioner's federal conviction and sentence. However, "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." ClearOne Communications, Inc. v. Biamo Systems, ___ F.3d ___, 2011 WL 3437796 at * 18 (10^th Cir. Aug. 8, 2011) (No. 09-4097, 10-4168) ( quoting Marshall v. Chater, 75 F.3d 1421, 1427-27 (10^th Cir. 1996); see United States v. Garfinkle, 261 F.3d 1030, 1031 (10^th Cir. 2001); Gonzales v. Ledezma, 417 Fed. Appx. 824, 825, 2011 WL 1167666 at * 2 (10^th Cir. March 30, 2011). Accordingly, Petitioner waived the issue of the purported inadequacy or ineffectiveness of the § 2255 remedy.

Therefore, the Report and Recommendation of the Magistrate Judge [Doc. No. 12] is ADOPTED in its entirety, the Respondent's motion to dismiss the petition for a writ of habeas corpus herein pursuant to 28 U.S.C. § 2241 is GRANTED and the 28 U.S.C. § 2241 petition is DISMISSED without prejudice for lack of jurisdiction.

IT IS SO ORDERED.