Diaz v. State of Texas

Filing 9

ORDER ADOPTING 5 the Magistrate Judge's Report and Recommendations. Diaz's Objections are overruled. Diaz's petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2241, is DISMISSED. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 7/24/2013. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LUIS ALONSO DIAZ,
Petitioner,
vs.

:

CIVIL ACTION NO.: CV213-044

STATE OF TEXAS,
Respondent.

ORDER
After an independent and do novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections
have been filed. In his Objections, Petitioner Luis Alonso Diaz ("Diaz") asserts that his
28 U.S.C. § 2241 petition "primarily attacks his prior State of Texas conviction" but
references his current federal convictions and sentence. (Doc. No. 7, p. 2). Diaz also
contends that his Texas conviction was used to enhance his federal sentence.
Diaz first raises these assertions in his Objections to the Magistrate Judge's
Report and Recommendation. This Court's usual practice is not to entertain assertions
made for the first time in Objections. Williams v. McNeil, 557 F.3d 1287 (11th Cir.
2009). Even if the Court were to consider Diaz's assertions, he is not entitled to his
requested relief. A review of Diaz's petition makes it abundantly clear that he is
challenging his 1991 State of Texas conviction and only that conviction. Diaz's
challenge to his state conviction is over twenty (20) years too late. 28 U.S.C. §

AO 72A
(Rev. 8/82)

2244(d)(1). In addition, while Diaz's state conviction may have been utilized to
determine his sentencing range, there is nothing before the Court indicating that this
state conviction was used to enhance his federal sentence. This Court lacks
jurisdiction to entertain the merits of Diaz's petition.
Diaz's Objections are overruled.

The Magistrate Judge's Report and

Recommendation, as supplemented herein, is adopted as the opinion of the Court.
Diaz's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is
DISMISSED.

The Clerk of Court is directed to enter the appropriate judgment of

dismissal.
2013.

SO ORDERED, this t' 'day of

LISGOjBEY WO0DtHIEF JUDGE
UNITE VSTATES DISTRICT COURT
SOUTAERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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