O'Haro v. Wells

Filing 7

ORDER denying as moot 3 Motion for Leave to Proceed in forma pauperis; adopting re 4 Report and Recommendations. Therefore, the petition is Dismissed and this civil action is Closed. Signed by Judge Dudley H. Bowen on 5/25/11. (cmr)

ORIGINAL

FILED

IN THE UNITED STATES DISTRICT COURT

U.S. DiSTRJCI COURT
AUGUSTA UiV,

FOR THE SOUTHERN DISTRICT OF GEORGIA

2011 MAY 25 PI i2 : 27:

DUBLIN DIVISION

CLERK

VERMAN OHARO,
Petitioner,
V.

CV 311-007

WALT WELLS, Warden,
Respondent.

[SJItI1
After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed (doc. no. 6).
Petitioner commenced this case pursuant to 28 U.S.C. § 2241, but sought to challenge the
validity, rather than the execution, of his sentence. doc. no. L) The Magistrate Judge
recommended dismissal of the petition because Petitioner failed to meet the requirements for
invoking the 'savings clause" of 28 U.S.C. § 2255, which is necessary for Petitioner to
challenge the validity of his sentence under § 2241. See 28 U.S.C. § 2255(e): Wofforcl v.
Scott, 177F3d 1236, 1245(1lthCir. 1999).
Most of Petitioner's objections center around his argument that the Court should
obtain a copy of the trial transcript from Petitioner's trial in the United States District Court
for the Eastern District of New York, in which he was found guilty of conspiring to import
heroin, so that Petitioner may attempt to prove his actual innocence of that crime. (Doc. no.
6, pp. 1, 3-7.) In support of those objections, Petitioner cites Saw yer v. Holder, 326 F.3d

1363, 1366 (1 lth Cir. 2003) for the proposition that, once the savings clause of § 2255
opens the portal to a § 2241 proceeding," the proper inquiry is whether the petitioner can
establish actual innocence of the crime for which he has been convicted. (Doc. no, 6, p. 5.)
Petitioner's argument overlooks the fact that the Magistrate Judge explicitly found that
Petitioner failed 10 satisfy the three-prong test to invoke the savings clause of § 2255, and
therefore. the "portal to a § 2241 proceeding" remains closed to Petitioner. (ç doc. no. 4,
,. 5.) Thus, Petitioner's objections regarding obtaining his trial transcript are
OVERRULED. The remainder of Petitioner's objections are also without merit and are
likewise OVERRULED.
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED
as the opinion of the Court. Therefore, Petitioner's motion to proceed
(doc. no. 3) is DENIED AS MOOT, the petition tiled pursuant

10 §

in jorrna pauperis

2241 is DISMISSED,

and this civil action is CLOSED.
SO ORDERED this ' day of May, 2011, at Augusta. Georgia.