HERNANDEZ v. AUGUSTINE

Filing 7

ORDER accepting 5 Report and Recommendation; DENYING 2 , 4 Motions for Leave to Proceed in forma pauperis. Signed by SENIOR JUDGE MAURICE M PAUL on 10/21/2011. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, is DISMISSED. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
WALTER HERNANDEZ, SR,
Petitioner,
v.

CASE NO. 5:11-cv-00270-MP-GRJ

PAIGE AUGUSTINE,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 5, the Report and Recommendation of the
Magistrate Judge, recommending that the petition brought under 28 U.S.C. § 2241 be summarily
dismissed as precluded by 28 U.S.C. § 2255(e). The petitioner filed objections, Doc. 6, and the
Court has made a de novo determination of those portions of the Report and Recommendation to
which objection was made. 28 U.S.C. § 636(b)(1)(C). Upon consideration, the undersigned
agrees that the petition seeks to challenge the petitioner's judgment of conviction and thus falls
within the purview of § 2255(e). Additionally, the undersigned agrees that the mere fact that the
petitioner is certain that the trial judge will deny any § 2255 motion is not sufficient to trigger
the savings clause of § 2255(e). Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is accepted and incorporated
herein. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, is
DISMISSED, and his motions for leave to proceed as a pauper (Docs. 2 & 4) are
DENIED.
DONE AND ORDERED this 21st day of October, 2011

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