TERRY O'BRIEN, Warden, U.S. Penitentiary Hazelton, Respondent.
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
The petitioner, Tadd Errol Vassell, by counsel, filed a petition for habeas corpus under 28 U.S.C. § 2241 (“§ 2241”). The action was referred to United States Magistrate Judge Michael John Aloi for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. The respondent filed a motion to dismiss the § 2241 petition. The magistrate judge filed a report and recommendation recommending that the respondent's motion to dismiss be granted and that the § 2241 petition be denied and dismissed without prejudice. The magistrate judge informed the parties that if they objected to any portion of the report and recommendation, they were required to file written objections within 14 days after being served with copies of the report. The petitioner timely filed objections.
The petitioner contends that his mandatory life without parole sentence is unconstitutional and void ab initio because it was imposed for a conspiracy that he entered into as a juvenile. The petitioner relies on the following cases: Miller v. Alabama, 132 S.Ct. 2455 (2012), Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Graham v. Florida, 560 U.S. 48 (2010). The petitioner recognizes that current precedent precludes him from obtaining relief under § 2241, but contends that he is entitled to relief under § 2241 because § 2255 is inadequate or ineffective to test his detention. The petitioner also suggests that the United States Court of Appeals for the Fourth Circuit may expand the availability of § 2241 relief via the savings clause in United States v. Surratt, 797 F.3d 240 (4th Cir. 2015). The petitioner seeks a writ of habeas corpus stating that he is entitled to relief from his unconstitutional sentence.
The respondent filed a motion to dismiss the § 2241 petition. First, the respondent argues that the petition must be dismissed because it cannot be properly treated as a valid, successive § 2255 motion. Second, the respondent argues that, before the petitioner can litigate his challenge to his sentence under § 2241, he must satisfy § 2255(e) by establishing that § 2255 is inadequate or ineffective to test the legality of his detention. The respondent contends that the petitioner cannot satisfy § 2255(e). Third, the respondent argues that enforcing the statute of limitations under § 2255(f) does not constitute an unconstitutional suspension of the writ of habeas corpus. Fourth, the respondent argue that, even if the petitioner could satisfy the gatekeeping requirements of § 2255, his claim would still fail on the merits because: (1) Graham and Miller adopted a bright-line rule that does not apply to defendants with adult criminal liability; (2) a host of doctrines that control conspiracy law all support the finding that the petitioner is not entitled to relief under Graham and Miller; (3) courts of appeals, including the Fourth Circuit, have uniformly held that a defendant with adult criminal liability may have his sentence increased, even up to life, based on that defendant's prior juvenile convictions; and (4) the only federal court of appeals to decide a Miller challenge to a sentence for conduct that began when the defendant was a juvenile and continued into adulthood, has found Miller inapplicable.
The petitioner filed a response in opposition to the respondent's motion to dismiss. In response, the petitioner argues that, while current precedent precludes him from relief under § 2255's savings clause, he has also presented “alternative paths to habeas relief” based on the constitutional mandate described in Montgomery and an extension of the fundamental miscarriage of justice exception. Alternatively, the petitioner asks that his § 2241 petition be treated as a successive § 2255 motion and be transferred to the sentencing court.
In his objections to the magistrate judge's report and recommendation, the petitioner first argues that the magistrate judge erred by failing to apply the savings clause to the petitioner's sentence. Second, the petitioner argues that the magistrate judge erred in concluding that the petitioner cannot obtain relief under Graham, Montgomery, or Miller. Third, the petitioner argues that the magistrate judge erred by ignoring the Supreme Court's holding in Montgomery that post-conviction courts are constitutionally obligated to provide relief from a void and unconstitutional sentence. Fourth, the petitioner argues that the magistrate judge erred by failing to recommend an extension of the fundamental miscarriage of justice exception. Lastly, the petitioner argues that the magistrate judge erred in recommending denial of the petitioner's alternative request to treat his § 2241 petition as a successive § 2255 motion.
For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be adopted in its entirety.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which an objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which the petitioner objected. As to those findings to which objections were not filed, all findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo.
A prisoner may file a motion under § 2255 to collaterally attack the legality of his conviction or sentence. 28 U.S.C. § 2255(a); Davis v. United States, 417 U.S. 333, 343 (1974). But generally, a prisoner may file a petition under § 2241 to challenge only the manner in which a sentence is executed. 28 U.S.C. § 2241(c). A prisoner may use § 2241 to collaterally attack the legality of his conviction or sentence only if the remedy under § 2255 is “inadequate or ineffective.” In re Jones, 226 F.3d 328, 332 (4th Cir. 2000); see also 28 U.S.C. § 2255(e).


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DEPARTMENT OF AGRARIAN REFORM, QUEZON CITY & PABLO MENDOZA, PETITIONERS, V. ROMEO C. CARRIEDO, RESPONDENT.
We resolve the motion for reconsideration filed by the Department of Agrarian Reform (DAR) of the Decision dated January 20, 2016.
At the onset, we note that the DAR was not given the opportunity to participate in the proceedings before the Court of Appeals and before this Court, until it filed its motion for reconsideration of this Court's Decision. In its motion for reconsideration, the DAR contends that the agency had been denied due process when it was not afforded the opportunity to refute the allegations against the validity of DAR Administrative Order No. 5, Series of 2006 (AO 05-06) before the Court of Appeals and before this Court. It argues that the basic requirement of due process has not been accorded to the agency because it was not even notified of the petition filed before the Court of Appeals; nor did the Court of Appeals notify the DAR of the proceedings and its Decision. The DAR, therefore, insists that the Decision dated January 20, 2016 be reconsidered by this Court especially so that the issues involve the enforcement and validity of its regulations.
We agree with the DAR. Being the government agency legally mandated to implement the Comprehensive Agrarian Reform Law of 1988 (CARL) and the primary agency vested with the expertise on the technicalities of the CARL, the DAR's position on the issues raised before us deserves cogent consideration. In fact, the CARL specifically empowers the DAR to issue rules and regulations, whether substantive or procedural, to carry out the objects and purposes of the law. Administrative rules and regulations ordinarily deserve to be given weight and respect by the courts in view of the rule-making authority given to those who formulate them and their specific expertise in their respective fields. In this case, it cannot be denied that the DAR possesses the special knowledge and acquired expertise on the implementation of the agrarian reform program. To pay no heed to its position on the issues raised before us ignores the basic precepts of due process. Therefore, under these circumstances, we are impelled to revisit our Decision, this time taking into account the arguments and position of the DAR.
To reiterate, the core issue before us is whether Romeo C. Carriedo's (Carriedo) previous sale of his landholdings to Peoples' Livelihood Foundation, Inc. (PLFI) can be treated as the exercise of his retention rights, such that he cannot lawfully claim the subject landholding as his retained area anymore. The issue necessarily touches on the validity of Item No. 4 of AO 05-06 and the relevant provisions of the CARL. Further, the issue of whether Certificates of Land Ownership Awards (CLOAs) possess the indefeasibility accorded to a Torrens certificate of title is likewise raised before this Court.
We will discuss the issues in seriatim.
The Decision adjudged Item No. 4 of AO 05-06 as ultra vires for providing terms which appear to expand or modify some provisions of the CARL. The DAR argues that this ruling sets back the Comprehensive Agrarian Reform Program by upsetting its established substantive and procedural components. Particularly, the DAR contends that the nullification of Item No. 4 of AO 05-06 disregarded the long-standing procedure where the DAR treats a sale (without its clearance) as valid based on the doctrine of estoppel, and that the sold portion is treated as the landowner's retained area.
Applying Item No. 4 of AO 05-06 to the facts of this case, the DAR submits that the subject landholding cannot be considered as the retained area of Carriedo anymore because he has already exercised his right of retention when he previously sold his landholdings without DAR clearance. The DAR specifies that sometime in June 1990, Carriedo unilaterally sold to PLFI his agricultural landholdings with approximately 58.3723 hectares. The DAR, therefore, argues that Carriedo's act of disposing his landholdings is tantamount to the exercise of his right of retention under the law.
4. Where the transfer/sale involves more than the five (5) hectare retention area, the transfer is considered violative of Sec. 6 of R.A. No. 6657.
In case of multiple or series of transfers/sales, the first five (5) hectares sold/conveyed without DAR clearance and the corresponding titles issued by the Register of Deeds (ROD) in the name of the transferee shall, under the principle of estoppel, be considered valid and shall be treated as the transferor/s' retained area but in no case shall the transferee exceed the five-hectare landholding ceiling pursuant to Sections 6, 70 and 73(a) of R.A. No. 6657. Insofar as the excess area is concerned, the same shall likewise be covered considering that the transferor has no right of disposition since CARP coverage has been vested as of 15 June 1988. Any landholding still registered in the name of the landowner after earlier dispositions totaling an aggregate of five (5) hectares can no longer be part of his retention area and therefore shall be covered under CARP.
The DAR's argument has merit.
Sec. 2. Declaration of Principles and Policies. -It is the policy of the State to pursue a Comprehensive Agrarian Reform Program (CARP). The welfare of the landless farmers and farmworkers will receive the highest consideration to promote social justice and to move the nation toward sound rural development and industrialization, and the establishment of owner cultivatorship of economic-size farms as the basis of Philippine agriculture.
Both the Constitution and CARL underscore the underlying principle of the agrarian reform program, that is, to endeavor a more equitable and just distribution of agricultural lands taking into account, among others, equity considerations. We find merit in the DAR's contention that the objective of AO 05-06 is equitable—that in order to ensure the effective implementation of the CARL, previous sales of landholding (without DAR clearance) should be treated as the exercise of retention rights of the landowner, as embodied in Item No. 4 of the said administrative order.
The equity in this policy of AO 05-06 is apparent and easily discernible. By selling his landholdings, it is reasonably presumed that the landowner already received an amount (as purchase price) commensurate to the just compensation conformable with the constitutional and statutory requirement. At this point, equity dictates that he cannot claim anymore, either in the guise of his retention area or otherwise, that which he already received in the previous sale of his land.
In Delfino, Sr. v. Anasao, the issue of whether the inclusion of the two-hectare portion sold by Delfino to SM Prime Holdings, Inc. (without DAR clearance) resulted in the diminution of his retention rights was raised before this Court. In that case, Delfino was adjudged by the DAR to be entitled to five hectares of retention area, to be taken out from the tenanted area that he owns. Subsequently, however, and without prior clearance from the DAR, Delfino sold two hectares of land to SM Prime Holdings, Inc. This supervening event prompted the DAR Secretary to clarify his previous Order (albeit the same having already attained finality) and found it fair and equitable to include the two-hectare portion sold to SM Prime Holdings, Inc. as part of Delfino's retention area. Consequently, Delfino is now entitled only to the balance of three hectares. Upon motion for reconsideration by Delfino, the DAR Secretary explained that the clarification was made in order not to circumvent the five-hectare limitation as said landowner "cannot [be allowed to] simultaneously enjoy x x x the proceeds of the [sale] and at the same time exercise the right of retention under CARP. " This Court upheld the clarification issued by the DAR Secretary insofar as in holding that Delfino had partially exercised his right of retention when he sold two hectares to SM Prime Holdings, Inc. after his application for retention was granted by the DAR. We do not see any reason why the same principle cannot be applied in this case.
In relation to this, we also take note of the submissions of the DAR pertaining to the "immense danger to the implementation of CARP" that it perceives to arise as a consequence of our Decision. Particularly, DAR posits that the Decision "will provide landowners unbridled freedom to dispose any or all of their agricultural properties without DAR clearance and still at a moment's notice decide which of those lands he wishes to retain, to the prejudice not only of the tenants and/or farmer beneficiaries but of the entire CARP as well." It further posits that to allow Carriedo to claim the subject landholdings as his retained area "will in effect put on hold the implementation of [the] CARP to wait for the landowner, despite selling majority of his agricultural landholdings, and despite receiving compensation for the same, to still be able to choose the retention area."
The DAR, therefore, maintains that AO 05-06 is the regulation adopted by the agency precisely in order to prevent these perceived dangers in the implementation of the CARL. The policy behind AO 05-06 should deter any attempt to circumvent the provisions of the CARL which may arise under a factual milieu similar in this case.
We also agree with the DAR on this point.
AO 05-06 is in consonance with the Stewardship Doctrine, which has been held to be the property concept in Section 6, Article II of the 1973 Constitution. Under this concept, private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners. As a mere steward, the individual must exercise his rights to the property not for his own exclusive and selfish benefit but for the good of the entire community or nation. Property use must not only be for the benefit of the owner but of society as well. The State, in the promotion of social justice, may regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse property ownership and profits. It has been held that Presidential Decree No. 27, one of the precursors of the CARL, embodies this policy and concept.
This interpretation is consistent with the objective of the agrarian reform program, which is, of course, land distribution to the landless farmers and farmworkers. The objective is carried out by Item No. 4 of AO 05-06 as it provides for the consequences in situations where a landowner had sold portions of his/her land with an area more than the statutory limitation of five hectares. In this scenario, Item No. 4 of AO 05-06 treats the sale of the first five hectares as the exercise of the landowner's retention rights. The reason is that, effectively, the landowner has already chosen, and in fact has already disposed of, and has been duly compensated for, the area he is entitled to retain under the law.
Further, Item No. 4 of AO 05-06 is consistent with Section 70 of the CARL as the former likewise treats the sale of the first five hectares (in case of multiple/series of transactions) as valid, such that the same already constitutes the retained area of the landowner. This legal consequence arising from the previous sale of land therefore eliminates the prejudice, in terms of equitable land distribution, that may befall the landless farmers and farmworkers.
We note that records also bear that the previous sale of Carriedo's landholdings was made in violation of the law, being made without the clearance of the DAR. To rule that Carriedo is still entitled to retain the subject landholding will, in effect, reward the violation, which this Court cannot allow. We emphasize that the right of retention serves to mitigate the effects of compulsory land acquisition by balancing the rights of the landowner and the tenant, and by implementing the doctrine that social justice was not meant to perpetrate an injustice against the landowner. In this case, however, Carriedo claims his right over the subject landholding not because he was "deprived" of a portion of his land as a consequence of compulsory land coverage, but precisely because he already previously sold his landholdings, so that the subject landholding is the only portion left for him.
Although constitutionally guaranteed, the exercise of a landowner's right of retention should not be done without due regard to other considerations which may affect the implementation of the agrarian reform program. This is especially true when such exercise pays no heed to the intent of the law, or worse, when such exercise amounts to its circumvention.
In view of the foregoing, we hold that Item No. 4 of AO 05-06 is valid. Indeed, the issue in this case is more than the mere claim of an individual to his retained area, but had been, at the onset, an issue of the implementation of the CARL in line with the mandate and objective as set forth in the Constitution.
The Decision also adjudged that CLOAs are not equivalent to a Torrens certificate of title, and thus are not indefeasible. The DAR disagrees and submits that this ruling relegated Emancipation Patents and CLOAs to the status of a Certificate of Land Transfer, which is merely part of the preparatory steps for the eventual issuance of a certificate of title.
We agree with the DAR. A Certificate of Land Ownership Award or CLOA is a document evidencing ownership of the land granted or awarded to the beneficiary by the DAR, and contains the restrictions and conditions provided for in the CARL and otl1er applicable laws.
We, however, note that the issue involving the issuance, recall, or cancellation of CLOAs is lodged with the DAR, which has primary jurisdiction over the matter.
WHEREFORE, premises considered, the motion for reconsideration filed by the Department of Agrarian Reform is hereby GRANTED, and the Decision dated January 20, 2016 is REVERSED and SET ASIDE. Item No. 4 of DAR Administrative Order No. 05, Series of 2006 is hereby declared VALID.
Peralta (Chairperson), Leonen, and A. Reyes, Jr., JJ., concur.
Please take notice that on October 10, 2018 a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on November 13, 2018 at 10:10 a.m.
 Dated March 22, 2016. Rollo, pp. 297-330.
 Guidelines on the Acquisition and Distribution of Agricultural Lands Subject of Conveyance Under Section 6, 70 and 73(a) of R.A. No. 6657.
 See Rom v. Roxas & Company, Inc., G.R. No. 169331, September 5, 2011, 656 SCRA 691,707, citing Roxas & Co., Inc. v. Court of Appeals, G.R. No. 127876, December 17, 1999, 321 SCRA 106, 153-154, 164; San Miguel Properties, Inc. v. Perez, G.R. No. 166836, September 4, 2013, 705 SCRA 38, 59-60; and Alfonso v. Land Bank of the Philippines, G.R. Nos. 181912 & 183347, November 29, 2016, 811 SCRA 27, 122.
 Republic Act No. 6657, Sec. 49. Rules and Regulations. — The PARC and the DAR shall have the power to issue rules and regulations, whether substantive or procedural, to carry out the objects and purposes of this Act. Said rules shall take effect ten (10) days after publication in two (2) national newspapers of general circulation.
 Chamber of Real Estate and Builders' Associations, Inc. v. Romulo, G.R. No. 160756, March 9, 2010, 614 SCRA 605, 639-640.
 Department of Agrarian Reform, Quezon City v. Carriedo, supra note 2 at 306, 316-317.
 Department of Agrarian Reform, Quezon City v. Carriedo, supra note 2 at 328-330.
 G.R. No. 197486, September 10, 2014, 734 SCRA 672.
 Rollo, p. 308. Emphasis supplied.
 Mataas na Lupa Tenants Assoc., Inc. v. Dimayuga, G.R. No. L-32049, June 25, 1984, 130 SCRA 30, 42-43.
 Almeda v. Court of Appeals, G.R. No. L-43800, July 29, 1977, 78 SCRA 194, 199.
Sec. 2. Declaration of Principles and Policies. - It is the policy of the State to pursue a Comprehensive Agrarian Reform Program (CARP). The welfare of the landless farmers and farmworkers will receive the highest consideration to promote social justice and to move the nation toward sound rural development and industrialization, and the establishment of owner cultivatorship of economic-size farms as the basis of Philippine agriculture.
The objective is enlivened by the provisions on Chapter VII of the CARL which is entitled "Land Redistribution," to wit: Section 22 (Qualified Beneficiaries); Section 23 (Distribution Limit); Section 24 (Award to Beneficiaries); Section 25 (Award Ceilings for Beneficiaries); and Section 26 (Payment by Beneficiaries).
Upon the effectivity of this Act, any sale, disposition, lease, management, contract or transfer of possession of private lands executed by the original landowner in violation of the Act shall be null and void: Provided, however, That those executed prior to this Act shall be valid only when registered with the Register of Deeds within a period of three (3) months after the effectivity of this Act. Thereafter, all Registers of Deeds shall inform the Department of Agrarian Reform (DAR) within (30) days of any transaction involving agricultural lands in excess of five (5) hectares.
 Danan v. Court of Appeals, G.R. No. 132759, October 25, 2005, 474 SCRA 113, 128.
 Department of Agrarian Reform, Quezon City v. Carriedo, supra note 2 at 333.
 Lebrudo v. Loyola, G.R. No. 181370, March 9, 2011, 645 SCRA 156, 161. See also Roxas & Co., Inc. v. Court of Appeals, G.R. No. 127876, December 17, 1999, 321 SCRA 106.
 Republic Act No. 9700, An Act Strengthening the Comprehensive Agrarian Reform Program (CARP), Extending the Acquisition and Distribution of All Agricultural Lands, Instituting Necessary Reforms, Amending for the Purpose Certain Provisions of Republic Act No. 6657, Otherwise Known as the Comprehensive Agrarian Reform Law of 1988, as Amended, and Appropriating Funds Therefor.
 G.R. No. 159674, June 30, 2006, 494 SCRA 218.
 Id. at 237-238, citing Lahora v. Dayanghirang, Jr., G.R. No. L-28565, January 30, 1971, 37 SCRA 346, 350.
 See Aninao v. Asturias Chemical Industries, Inc., G.R. No. 160420, July 28, 2005, 464 SCRA 526, 542-543.
 See Bagongahasa v. Romualdez, G.R. No. 179844, March 23, 2011, 646 SCRA 338, 350-351.

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According to R.C.M. 706(a), any commander, investigating officer, trial counsel, defense counsel, military judge, or member.
A sanity board should be granted if the request is not frivolous and is made in good faith. United States v. Nix, 36 C.M.R. 76, 80-81 (C.M.A. 1965); United States v. Kish, 20 M.J. 652 (A.C.M.R. 1985).
It may be prudent for trial counsel to join in the motion. See United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997).
A failure to timely direct a sanity board can result in lengthy appellate review. United States v. Breese, 47 M.J. 5 (C.A.A.F. 1997).
In United States v. Pattin, 50 M.J. 637, 639 (A. Ct. Crim. App. 1999), the Court found that the military judge’s refusal to order a sanity board was not error as it appeared the motion for a sanity board was merely a frivolous attempt to get a trial delay.
The board must have one or more persons, a physician or clinical psychologist and at least one psychiatrist or clinical psychologist. A provisional license may be enough to qualify a psychologist as a clinical psychologist. United States v. Boasmond, 48 M.J. 912 (N-M. Ct. Crim. App. 1998).
In United States v. Best, 61 M.J. 376 (C.A.A.F. 2005). In a case where two members of the accused’s RCM 706 sanity board had a preexisting psychotherapist-patient relationship with the accused, the Court held there was no evidence suggesting that the two members’ participation would be materially limited by their prior relationship.
Article 31, UCMJ, not applicable.
Failure to cooperate in an examination can result in the exclusion of defense expert evidence.
The general rule: Anything the accused says (and any derivative evidence) to the sanity board is privileged and cannot be used against him.
This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by MRE 305.
There is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence. Privilege applies only to examinations ordered under RCM 706. See United States v. Toledo, 25 M.J. 270 (C.M.A. 1987), aff’d on reconsid., 26 M.J. 104 (C.M.A. 1988).
But see United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim App. 2007), aff’d, 66 M.J. 198 (C.A.A.F. 2008) where the Court found that the mental health evaluation performed by a staff psychologist as a result of a pretrial suicide gesture was not an adequate substitute because of her inexperience in performing sanity boards). And United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997), where the Court found that the that mental status evaluation done by a mental health counselor was not an adequate substitute.

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← Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.
FOR APPELLEE: THOMAS M. LOUIS, LEO JOSEPH CARMODY JR.
JUDGES: BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
P1. In this premises-liability case, we must determine whether summary judgment was appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was proper; thus, we affirm.
P2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his stepfather, Jim Purser, went to a Wal-Mart [*1130] store in Batesville, Mississippi, to purchase a basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found [**2] it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches. The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.
P3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment. Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to show the existence of a dangerous condition. Seth filed a motion to reconsider, which was denied. Seth [**3] now appeals asserting the trial court erred in granting Wal-Mart’s motion for summary judgment.
P4. [HN1] In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). [HN2] The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established [**4] facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89 (¶13).
P5. [HN3] To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured [*1131] party. Titus v. Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).
P6. It is undisputed that Seth was a business invitee. [HN4] “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] [**5] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶6).
P7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or otherwise warn of a hidden danger necessarily depends on whether a dangerous condition existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient evidence of the essential elements of a claim of negligence – duty, breach, causation, and damages.
P8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart [**6] knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.
P9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was designed to make it difficult for patrons to remove the bicycle from the rack, prompting a need for employee assistance, but fails to offer sufficient evidence of this assertion.
P10. Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same [**7] aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to return the bicycles to the rack immediately after each use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible [*1132] bicycles on the sales floor created a dangerous condition, this issue is without merit.
P11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial. This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., 157 So. 3d 44, 2013 WL 1809878 (La. Ct. App. 2013), an unpublished opinion the trial court cited in support of its conclusion that an unlocked or readily accessible bicycle does not constitute a dangerous condition. In Orr, a woman was injured when she was struck by an adult male riding a bicycle in Academy Sports and Outdoors. 157 So. 3d 44, Id. at *1.
P12. It is not disputed that Seth was an invitee at the time of his injury, and he acknowledges that the duty owed him was not in any way heightened due to his status as a minor. What Seth [**8] appears to be arguing is that the trial court incorrectly considered evidence of contributory negligence in determining whether a dangerous condition existed. Seth had learned how to ride a bicycle by the age of five and had been involved in other bicycle accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on whether an unlocked or readily available bicycle constitutes a dangerous condition. If an unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not matter whether a person of Seth’s age, experience, and intelligence could have perceived the danger because the danger did not exist. Because Seth failed to show how an unlocked or readily available bicycle constituted a dangerous condition, this issue is without merit.
P13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

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Rob Roberts ("Roberts") appeals the District Court's dismissal with prejudice of his original complaint filed against Sabine State Bank & Trust Company ("Sabine"). In that original complaint, Roberts alleged that Sabine violated Roberts' rights under the Right to Financial Privacy Act ("RFPA"), 12 U.S.C. § 3401 et. seq., by releasing Robert's financial records without first receiving a certificate from the Government that the Government had complied with the RFPA provisions as is required by 12 U.S.C. § 3403(b). Thatsection states that " [a] financial institution shall not release the financial records of a customer until the Government authority seeking such records certifies in writing to the financial institution that it has complied with the applicable provisions of this chapter."
Defendant Sabine filed a Fed. R. Civ. P. 12(b) (6) motion to dismiss which was converted to a Fed. R. Civ. P. 56 motion for summary judgment. The essence of Sabine's motion was that the financial records were released pursuant to a subpoena issued under Rule of Courts-Martial 703(e) (2) (B), triggering the exception in 12 U.S.C. § 3413(e). That section provides: " [n]othing in this chapter shall apply when financial records are sought by a Government authority under the Federal Rules of Civil or Criminal Procedure or comparable rules of other courts in connection with litigation to which the Government authority and the customer are parties."
Here, the District Court affirmed a Magistrate Judge's Report and Recommendation, which concluded that the subpoena issued by the trial counsel (prosecutor) in the course of the court-martial against Roberts was issued "under a rule of the kind referenced in § 3413(e)."
Appellant Roberts asserts that R.C.M. § 703(e) (2) (B) is not "comparable" to Fed. R. Crim. P. 17(c) because it does not have the notice and opportunity to challenge requirements contained in that rule. We disagree. The language in the two rules is very similar, and there is case law to support the view that R.C.M. § 703(e) (2) (B) was modeled after federal criminal procedural rules. In Flowers v. First Hawaiian Bank, 85 F. Supp. 2d 993, 995 (D. Haw. 2000), the district court noted that according to 10 U.S.C. § 836(a) "the UCMJ applies the 'principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts [.]'" The Flowers court held that the UCMJ applied "comparable rules" to the federal rules referred to in RFPA § 3413(e). More importantly, 10 U.S.C. § 846 states that " [p]rocess issued in court-martial cases ... to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue."
Roberts contends that Rule 17(c) is not comparable to R.C.M. § 703(e) (2) (B) because, under the military rule, the defense is effectively prevented "from obtaining notice of a subpoena for a customer's financial records, and the opportunity to quash or modify it, as a defendant would in a proceeding governed by Fed. R. Crim.Proc. 17(c)." That assertion is inaccurate. In the first place, the RFPA does not purport to confer any notice rights on defendants in a criminal case, military or civilian. The Act deals with rights of bank customers. In any event, assuming the bank customer is also a criminal defendant, neither the military nor civilian rule grants defense counsel any notice before a subpoena is issued. Rule 17(c) states that once papers are subpoenaed, "the court may direct that books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence." (emphasis added). The described court action is subsequent to the subpoena by the prosecutor. The defense counsel is not entitled to notice before a subpoena is issued under either the military or civilian rule. The two rules, while not identical, are clearly comparable. Therefore, Section 703(e) (2) (B) does fall under exception § 3413(e).
At first glance, there appears to be a conflict between Section 3403(b), which states that a financial institution shall not release financial records until the Government authority provides certification, and Section 3413(e), which states that "nothing" in the chapter applies when financial records are sought by the Government authority under certain rules. We note, however, that Section 3413(e) refers to a request in connection with "litigation towhich the Government authority and the customer are parties." The exception appears to draw a distinction between a governmental request related to litigation and a governmental request pertinent to an administrative-type inquiry not connected to pending litigation. Because the request here derived from a court-martial case, the exception would apply. See Flowers v. First Hawaiian Bank, at 995.
Finally, we note that the Army has issued a regulation, 32 C.F.R. 504.2(e), regarding the implementation of the RFPA. It states that for judicial subpoenas, including subpoenas such as this one issued under Article 46 of the U.C.M.J., the Army will observe the notice and challenge provisions of 12 U.S.C. §§ 3407 and 3410. We agree with the district court that if this case were against the Army, those regulations may be pertinent. However, Roberts has sued the Bank. Even if the Army assumed greater responsibilities than the RFPA requires, the Bank is not deprived of the right to rely on the exemption Congress created in Section 3413(e).


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Jason S. Rucker (Rucker & Rucker, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for ap-pellee.
Present: Judges Elder, Haley and Senior Judge Annunziata. MEMORANDUM OPINION BY JUDGE LARRY G. EL-DER.
Timothy Rollison (appellant) appeals from his jury trial convictions for aggravated malicious wounding and use of a firearm in the commission of that offense. On appeal, he contends the trial court erroneously instructed the jury. We conclude that no reversible error occurred, and we affirm.
When the trial court indicated it would caution the jury that self-defense was not an issue rather than instruct them on self-defense, as the Commonwealth had suggested, appellant expressed his belief that this was “perhaps a much wiser solution than what the Commonwealth proposed.” However, he also stated immediately thereafter, “The question I have is, do we need to tell them that something they have not been instructed on is not an issue?” When the court indicated it thought such an instruction was appropriate and that it intended to give this instruction, appellant commented further, “Very well, Your Honor. … I accept the Court’s decision, but for the record, … [t]he reason we oppose that is because we believe at this stage that … the jury might take this as … a comment on my closing argument, the Court disagreeing with my closing argument, in essence … and that would be a prejudice to the defendant.” This exchange constituted a specific objection made at the time of the trial court’s ruling and satisfied the requirements of Rule 5A:18.
is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justifi-cation, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or un-justifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate[,] willful and cruel act against another, however sudden.
Lynn v. Commonwealth, 27 Va. App. 336, 344 n. 1, 499 S.E.2d 1, 5 n. 1 (1998).
Self-defense negates a finding of malice by providing a legal justification or excuse for a cruel act committed under the control of reason. See, e.g., Smith v. Commonwealth, 17 Va. App. 68, 435 S.E.2d 414, 10 Va. Law Rep. 211 (1993). “To justify the use of deadly force, the defendant must have reasonably feared death or serious bodily injury from his victim, and there must have been an overt threat.” Peeples v. Commonwealth, 30 Va. App. 626, 634, 519 S.E.2d 382, 386 (1999) (en banc). A defendant claiming self-defense “implicitly admits the killing was intentional,” McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978), but he “has no burden to prove the defense or negate an element of the crime,” Graham v. Commonwealth, 31 Va. App. 662, 674, 525 S.E.2d 567, 573 (2000). Instead, an accused asserting self-defense must provide merely “sufficient evidence [of self-defense] to raise a reasonable doubt about his guilt.” Smith, 17 Va. App. at 71, 435 S.E.2d at 416.
The existence of heat of passion may negate malice “when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as … fear so as to cause one to act on impulse without conscious reflection,” see, e.g., Lynn, 27 Va. App. at 344 n. 1, 499 S.E.2d at 5 n. 1, rather than under the control of reason.
“‘ Both the Commonwealth and the defendant are entitled to appropriate instructions to the jury of the law applicable to each version of the case, provided such instructions are based upon the evidence adduced.'” Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 514, 7 Va. Law Rep. 38 (1990) (quoting Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735, 3 Va. Law Rep. 175 (1986)).
Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777, 3 Va. Law Rep. 40 (1986) (quoting 75 Am. Jur. 2d Trial ß 573 (1974)).
The trial judge commits error by not instructing the jury on a matter when, in the absence of such instruction, the jury may make findings based upon a mistaken belief of the law. See Martin v. Commonwealth, 218 Va. 4, 6-7, 235 S.E.2d 304, 305 (1977). “When a trial judge instructs the jury in the law, he or she may not ‘single out for emphasis a part of the evidence tending to establish a particular fact.'” Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882, 4 Va. Law Rep. 729 (1987) (quoting Woods v. Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467 (1938)). “On the other hand, instructions should relate to the specific evidence of the case; abstract propositions of law do little to help and much to mystify a jury.” Id. at 170, 360 S.E.2d at 882 (citing Gordon v. Director General, 128 Va. 426, 433, 104 S.E. 796, 798 (1920)). Finally, a decision to give a cautionary instruction and when to give it will not be set aside on appeal absent a showing of an abuse of discretion. Goins v. Commonwealth, 251 Va. 442, 465, 470 S.E.2d 114, 129 (1996).
Here, the court’s cautionary instruction did not emphasize “a part of the evidence tending to establish a particular fact.” Terry, 5 Va. App. at 170, 360 S.E.2d at 882 (emphasis added). Instead, it pointed out to the jury that a particular legal theory–self-defense–was not in issue. The victim was a transsexual prostitute whose true gender appellant claimed to have learned only moments before the shooting during what began as a consensual sexual encounter. Appellant said he became fearful and pulled his firearm when the prostitute suggested that they continue the sexual encounter despite the fact that the prostitute, like appellant, was male. As the Commonwealth argued and the trial court found, appellant’s closing argument “[came] perilously close” to a claim that appellant’s act of shooting the victim was excusable because it was done in self-defense, i.e., because appellant feared the victim would take away his firearm and then use the fire-arm against appellant. The likelihood of the jury’s misinterpreting appellant’s argument was heightened by appellant’s claim that the fear he experienced negated a finding of malice but did so without supporting a heat-of-passion defense. Appellant’s ongoing claim that he acted out of fear at a time when his mind was not under the control of reason but that he was not asserting a heat-of-passion defense heightened the need for a cautionary instruction to preclude a jury verdict based on self-defense, a defense that appellant did not raise and expressly agreed he was not advancing. Under these circumstances, the trial court did not abuse its discretion by informing the jury that self-defense was not a legal theory upon which they could base an acquittal.
Similarly, we hold the trial court did not abuse its discretion by giving the contested instruction after appellant made his closing argument and before the Commonwealth delivered its rebuttal argument, rather than at the close of all argument as appellant had requested. Although appellant expressed concern that the jury was more likely to interpret the instruc-tion as the court’s criticism of his closing argument if the court gave that instruction immediately following appellant’s closing, appellant did not object to the Commonwealth’s right to argue in rebuttal that self-defense was not an issue in the case. Further, the court’s instruction was worded in a neutral fashion that made no mention whatever of appellant’s argument. The court merely told the jury that it “want[ed] to emphasize … that self-defense is not an issue in this case and that you’re going to decide this case … based only upon whatever you think about what you’ve heard and these in-structions.” The trial court said to the jury nothing beyond that which appellant had told the court he agreed to–that self-defense was not an issue in the case. The trial court’s decision to give this instruction prior to the Commonwealth’s re-buttal argument was not an abuse of discretion.
For these reasons, we hold that the trial court did not commit reversible error in instructing the jury, after appellant’s closing argument and before the Commonwealth’s rebuttal argument, that self-defense was not an issue in the case and that it must decide the case based on the instructions previously given. Thus, we affirm the challenged convictions.
1 The Commonwealth argues appellant “has defaulted on” this aspect of his claim, “[a]lthough [it admits] the matter [of default] is not free from doubt.” We conclude appellant sufficiently preserved this argument for appeal.

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