USA v. Herrod

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
V. CASE NO. 5:19-CR-50094
FREDERICK HERROD DEFENDANT/PETITIONER

OPINION AND ORDER

Currently before the Court is the Report and Recommendation (“R&R”) of the
Honorable Christy Comstock, United States Magistrate Judge for the Western District of
Arkansas. (Doc. 154). On July 29, 2022, Frederick Herrod filed objections to the R&R.
(Doc. 155). When a defendant makes specific objections to portions of a magistrate
judge’s R&R, the district court must conduct a de novo review of the contested findings
to which the defendant has lodged such objections. See 28 U.S.C. § 636 (b)(1). The
Court may then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” /d.

In his objections to the R&R, Mr. Herrod disagrees with the finding that this Court
had proper jurisdiction to sentence him for the crime of possession of methamphetamine.
He contends his federal prosecution was a “sham” and objects that the Magistrate Judge
should have considered his request for habeas relief under 28 U.S.C. § 2241 rather than
§ 2255. In brief, § 2255 is used to attack the validity of a conviction, while § 2241 is used
to challenge the execution of a sentence. Matheny v. Morrison, 307 F.3d 709, 801 (8th
Cir. 2002). Here, Mr. Herrod is challenging the validity of his conviction, so his petition
for habeas relief is properly brought under § 2255. Regardless, his substantive

arguments lack merit.

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

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Mr. Herrod’s jurisdictional argument challenges the so-called “dual sovereignty”
doctrine. He argues that his federal conviction placed him in double jeopardy because
the underlying criminal conduct was the same as the conduct prosecuted by the state.
See Doc. 149-1, p. 6. In other words, Mr. Herrod believes the federal government lacked
jurisdiction to charge him with drug crimes because the state was also charging him with
drug crimes based on the same set of facts. See Doc. 155, p..5.

The state and federal governments are different sovereigns with different laws.
They may each prosecute an individual for the same unlawful conduct without offending
the U.S. Constitution. See Heath v. Alabama, 474 U.S. 82, 90 (1985) (“[T]he dual
sovereignty doctrine is founded on the common law conception of crime as an offense
against the sovereignty of the government. When a single act violates the peace and
dignity of two sovereigns by breaking the laws of each, [the defendant] has committed
two distinct offences.”).

For the reasons stated, Mr. Herrod’s objections to the R&R are OVERRULED, and
the R&R is ADOPTED IN ITS ENTIRETY. The Petition and Motion to Vacate (Docs. 107,
149, 151) are DENIED AND DISMISSED WITH PREJUDICE.

IT IS SO ORDERED on this | i day of August,

UNITE ES DISTRICT JUDGE