Ellingburg v. Hendrix

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION HOLSEY ELLINGBURG, JR PLAINTIFF Reg #09172-021 v. Case No. 2:20-cv-00046-LPR DEWAYNE HENDRIX DEFENDANT Warden ORDER Before the Court is United States Magistrate Judge Joe J. Volpe’s Proposed Findings and Recommendations (the “Recommendation”). (Doc. 8). Judge Volpe recommends that the Court dismiss Plaintiff’s 2241 Petition for a Writ of Habeas Corpus. (Doc. 2). Plaintiff filed Objections to the Recommendation. (Doc. 9). The Court has reviewed the Recommendation, Plaintiff’s Objections, and the entire Record. Based on the Court’s de novo review, the Court concludes that Plaintiff’s Petition does not fall within the savings clause set forth at 28 U.S.C. § 2255 (e). See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017); Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011); see also Lee v. Sanders, 943 F.3d 1145, 1147 (8th Cir. 2019) (citing Prost with favor in explaining the difficult showing “required by 2255’s ‘savings clause.’”).1 The Court 1 But see, e.g., United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), cert. denied, 139 S. Ct. 1318 , 203 L. Ed. 2d 600 (2019); Bruce v. Warden Lewisburg USP, 868 F.3d 170, 179-81 (3d Cir. 2017); Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). I do not read Abdullah v. Hedrick, 392 F.3d 957 (8th Cir. 2004), to have taken a position on the circuit split. therefore adopts the Recommendation to the extent it is consistent with the foregoing. Plaintiff’s 2241 Petition for a Writ of Habeas Corpus (Doc. 2) is DISMISSED.” IT IS SO ORDERED this 5th day of October 2020. rr. LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE The Motion and the files and records of this case conclusively show that Mr. Pinkston is entitled to no relief. A hearing is unnecessary.