BENITEZ v. UNITED STATES OF AMERICA

Filing 14

ORDER ON REPORT AND RECOMMENDATION; ADOPTING 13 Report and Recommendations.. Signed by SENIOR JUDGE MAURICE M PAUL on 5/17/2011. The petition under 28 U.S.C. § 2241 is denied with prejudice. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
OLGA OSORIO BENITEZ,
Petitioner,
v.

CASE NO. 4:10-cv-00480-MP -WCS

UNITED STATES OF AMERICA,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 13, Amended Report and Recommendation of the
Magistrate Judge, recommending that the petition under 28 U.S.C. § 2241 be dismissed as
petitioner cannot proceed under the savings clause of 28 U.S.C. § 2255. The time for filing
objections has passed, and none have been filed.
Petitioner has previously filed a § 2255 motion, and was denied leave by the Fifth Circuit
to file a successive § 2255 motion. She thus seeks to fit into the savings clause of § 2255, and be
allowed to file a § 2241 petition. As stated by the Magistrate Judge, to satisfy the savings clause,
petitioner must show that her claim is based on a retroactively applicable Supreme Court
decision establishing that she was convicted of a nonexistent offense and that circuit law had
squarely foreclosed the claim at the time of trial, appeal, or first § 2255 motion. Wofford v.
Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). The Court agrees with the

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Magistrate Judge that petitioner cannot show a retroactively applicable decision that would
render her offense non-existent. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is adopted and
incorporated herein.

2.

The petition under 28 U.S.C. § 2241 is denied with prejudice.

DONE AND ORDERED this 17th day of May, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 4:10-cv-00480-MP -WCS