Cruz v. UNITED STATES OF AMERICA

Filing 6

ORDER ADOPTING REPORT 4 of Magistrate Judge Saporito, DISMISSING Cruz' 28 USC 2241 petition 1 w/out prejudice to his right to file motion pursuant to 28 USC 2255 in sentencing ct subject to pre-authorization req'mts & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/29/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID CRUZ,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

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CIVIL ACTION NO. 1:16-CV-11
(Chief Judge Conner)

ORDER
AND NOW, this 29th day of February, 2016, upon consideration of the report
(Doc. 4) of Magistrate Judge Joseph F. Saporito, Jr., recommending that the court
dismiss the petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2241
filed by petitioner David Cruz (“Cruz”)1, wherein Judge Saporito opines that the
court is without jurisdiction to consider Cruz’s instant petition because Cruz cannot
demonstrate that 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of
his detention, (Doc. 4 at 4-7), and the court noting that Cruz has filed objections
(Doc. 5) to the report, see FED. R. CIV. P. 72(b)(2), and, following a de novo review of
the contested portions of the report, see Behar v. Pa Dep’t of Transp., 791 F. Supp.
2d 383, 389 (M.D. Pa. 2011) (citing 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989)), and applying a clear error standard of review to the
uncontested portions, see Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1999),

1

The court notes that the introductory paragraph to the magistrate judge’s
report identifies the petitioner by the name “Pagan” rather than “Cruz.” (Doc. 4 at
1). This isolated typographical error is plainly inadvertent and does not depreciate
the balance of the report’s sound legal analysis.

the court finding Judge Saporito’s analysis to be thorough, well-reasoned, and fully
supported by the record, and further finding Cruz’s objection to be without merit
and squarely addressed by the report, it is hereby ORDERED that:
1.

The report (Doc. 4) of Magistrate Judge Saporito is ADOPTED.

2.

Cruz’s petition (Doc. 1) pursuant to 28 U.S.C. § 2241 is DISMISSED
without prejudice to Cruz’s right to file a motion pursuant to 28 U.S.C.
§ 2255 in the sentencing court, subject to the preauthorization
requirements of 28 U.S.C. §§ 2244 and 2255(h), as the same may apply.

3.

The Clerk of Court is directed to CLOSE this case.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania