Cortes-Morales v. Hastings

Filing 15

ORDER ADOPTING 11 the Magistrate Judge's Report and Recommendation. Cortes-Morales's Objections to the Magistrate Judge's Report and Recommendation are without merit and are overruled. Cortes-Morales's petition 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

JORGE CORTES-MORALES,
Petitioner,
:

VS.

CIVIL ACTION NO.: CV213-057

SUZANNE R. HASTINGS, Warden
Respondent.
ORDER

Petitioner Jorge Cortes-Morales ("Cortes-Morales"), filed Objections to the
Magistrate Judge's June 28, 2013, Report which recommended that Cortes-Morales's
28 U.S.C. § 2241 be dismissed. In his Objections, Cortes-Morales argues that he
does in fact satisfy the savings clause of 28 U.S.C. § 2255.
After an independent and de novo review of the record, the undersigned concurs
with the Magistrate Judge's Report and Recommendation. As discussed in Wofford v.
Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), and in the Magistrate Judge's Report, a
motion under § 2255 is inadequate or ineffective, thus triggering the availability of §
2241 relief, only when a three-part test is met. When a prisoner's claim "1) [] is based
upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme

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(Rev. 8/82)

Court decision establishes the petitioner was convicted for a nonexistent offense; and
3) circuit law squarely foreclosed such a claim at the time it otherwise should have
been raised in the petitioner's trial, appeal, or first § 2255 motion[,]" then the prisoner
may pursue relief under § 2241. Wofford, 177 F.3d at 1244.
Cortes-Morales cites Carachuri-Rosendo v. Holder, - U.S. -, 130 S. Ct.
2577 (2010), as applicable Supreme Court precedent. Carachuri-Rosendo does not
meet the Wofford test.' Carachuri-Rosendo does not de-criminalize the conduct for
which Cortes-Morales was convicted. Neither can Cortes-Morales demonstrate that
Carachuri-Rosendo overturned binding, contrary circuit precedent that precluded him
from raising his claim on a previous occasion. Because Cortes-Morales fails to identify
a new, retroactively applicable Supreme Court decision that establishes that he was
convicted for a nonexistent offense or that he was foreclosed from raising these claims
in his previously-filed motions, his claims cannot be brought pursuant to § 2241. Simply
put, Cortes-Morales has not satisfied the requirements of § 2255's savings clause. See
Wofford, 177 F.3d at 1244; see also Dean v. McFadden, 133 F. App'x 640, 642 (11th
Cir. 2005) (noting that all three requirements of the Wofford test must be satisfied
before section 2255's savings clause is satisfied).
Cortes-Morales's Objections to the Magistrate Judge's Report and
Recommendation are without merit and are

overruled.

The Report and

Recommendation of the Magistrate Judge is adopted as the Opinion of the Court.

1

The Carachuri-Rosendo decision examined the meaning of "aggravated felony" in connection with
removal proceedings under the Immigration and Nationality Act. 130 S. Ct. 2577. Additionally,
Carachuri-Rosendo does not apply retroactively to cases on collateral review. See Fields v. Warden.
FCC Coleman-USP 1, 484 Fed. Appx. 425, 427 (11 th Cir. 2012); Bennett v. Haynes, 2012 WL 385629
(S. D. Ga. Jan. 19, 2012).

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Cortes-Morales's petition is DISMISSED. The Clerk .of Court is directed to enter the
appropriate judgment of dismissal.
SO ORDERED, this

__L '

day of

J4A

, 2013.

ASA GOBEVOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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