Duarte-Benitez v. Rothman et al

Filing 5

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

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.

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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

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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

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