Rosenow v. Daniels et al (INMATE 2)

Filing 7

ORDER directing that, after an independent evaluation and de novo review, Petitioner's objection is OVERRULED, the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED that this case is DISMISSED for failure to state a claim on which habeas corpus relief may be granted. Signed by Honorable Judge W. Harold Albritton, III on 10/28/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DANIEL ROSENOW, JR. #239 113,

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Petitioner,
v.
WARDEN DANIELS, et al.,
Respondents .

CIVIL ACTION NO. 2:13cv563-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #4)
and the Petitioner’s Objection (Doc. #5), filed on October 9, 2013.
In his objection, Petitioner reiterates the arguments presented in his petition and
complains that the Magistrate Judge did not specifically address the issues presented. Regardless
of the labels he attaches to his argument regarding the imposition of restitution, the fact remains
that Petitioner attempts to assert a challenge to the non-custodial portion of his state criminal
judgment. He is not attacking the execution or duration of his sentence, nor the fact of his
conviction for which he remains in custody. 28 U.S.C. § 2241(c)(3). Instead, Petitioner is
challenging only the restitution aspect of his Alabama conviction. He, therefore, cannot show
entitlement to relief under § 2241. See Arnaiz v. Warden, Fed. Satellite Low, 594 F.3d 1326,
1329–30 (11th Cir. 2010) (prisoner cannot use § 2241 to attack only restitution part of sentence);
Stewart v. Fed. Bureau of Prisons, 378 F. App'x 872, 873 (11th Cir. 2010) (reaffirming that the
court lacks jurisdiction to grant habeas relief unless relief affects physical confinement which
supplies the necessary custody requirement).

Therefore, after an independent evaluation and de novo review, Petitioner’s objection is
OVERRULED, the court ADOPTS the Recommendation of the Magistrate Judge, and it is
hereby
ORDERED that this case is DISMISSED for failure to state a claim on which habeas
corpus relief may be granted.
DONE this 28th day of October, 2013.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE