Duarte-Benitez v. Rothman et al

Filing 5

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 11/6/13. (SAC )

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FILED 2013 Nov-06 PM 02:40 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION TIBURCIO DUARTE-BENITEZ, Petitioner, v. JOHN T. RATHMAN, et al., Respondents. ) ) ) ) ) ) ) ) ) Case No. 1:13-cv-01123-KOB-HGD MEMORANDUM OPINION On June 20, 2013, the magistrate judge entered his report and recommendation, giving the parties fourteen days to file objections. (Doc. 3). On July 10, 2013, the court granted the Petitioner’s motion (doc. 4) and extended his time to file his objections until July 22, 2013. Even with the requested extension, the Petitioner filed no objections. The court has carefully considered the entire record in this case, including the magistrate judge’s report and recommendation. The court hereby ADOPTS the report of the magistrate judge and ACCEPTS his recommendations. To the extent that the petition could be construed as a § 2241 petition, the court hereby DENIES it. However, the court agrees that it should construe the petition for writ of habeas Page 1 of 2 corpus as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Although as a § 2255 petition, it may be barred, the sentencing judge has jurisdiction over the matter; therefore, this court will transfer this action to the United States District Court for the Northern District of Georgia for further proceedings. The court will enter a separate Order in conformity with this Memorandum Opinion. DONE and ORDERED this 6th day of November, 2013. ____________________________________ KARON OWEN BOWDRE UNITED STATES DISTRICT JUDGE Page 2 of 2

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