Upshaw v. Rathman

Filing 21

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/22/2016. (AHI)

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FILED 2016 Jun-22 PM 01:03 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION DAVID JUNIOR UPSHAW, Petitioner, vs. JOHN T. RATHMAN, Warden, Respondent. ) ) ) ) ) ) ) ) ) Case No. 1:14-CV-01668-CLS-JEO MEMORANDUM OPINION This is a habeas corpus case filed pursuant to 28 U.S.C. § 2241 by David Junior Upshaw, a federal prisoner acting pro se. (Doc. 1). The magistrate judge to whom the case was referred entered a report and recommendation (“R&R”) on June 2, 2016, see 28 U.S.C. § 636(b), in which he concluded that this action is due to be dismissed without prejudice, because this court lacks jurisdiction to hear petitioner’s habeas claim pursuant to the “savings clause” of 28 U.S.C. § 2255(e). (Doc. 20). Petitioner was allotted fourteen days in which to file objections to the R&R, and failed to do so prior to the expiration of that period. Having carefully reviewed and considered de novo all the materials in the court file, including the magistrate judge’s report and recommendation, the court is of the opinion that the magistrate judge’s findings are due to be and hereby are ADOPTED, and his recommendation is ACCEPTED. Accordingly, the petition for a writ of habeas corpus is due to be DISMISSED WITHOUT PREJUDICE for want of jurisdiction. A separate Final Order will be entered. DONE this 22nd day of June, 2016. _______________________________ United States District Judge 2

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