BENNETT v. WARDEN ROBERT WERLINGER

Filing 37

MEMORANDUM ORDER - it is hereby Ordered that the Report and Recommendation dated 4/1/2013 (ECF No. 33 ) is ADOPTED as the opinion of this Court. It is further Ordered that Petitioner's Motion to Reopen Case (ECF No. 25 ) is GRANTED. And it i s further Ordered that Petitioner shall file an Amended Petition for Writ of Habeas Corpus no later than 30 days from the date of this Order. Respondents shall then have 45 days to file an Answer to the Amended Petition, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 5/22/2013. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PATRICK R. BENNETT,
Petitioner,

v.
WARDEN ROBERT WERLINGER,
Respondent.

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Civil Action No. 10 - 172J
District Judge Kim R. Gibson
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

This case is before the Court on the Report and Recommendation filed by Chief
Magistrate Judge Lenihan on April 1, 2013. (ECF No. 33.) Judge Lenihan recommended that
Petitioner's Motion to Reopen this case (ECF No. 25) be granted and that supplemental briefing
be ordered on whether this Court has jurisdiction over Petitioner's Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2241. Both Petitioner and Respondent have filed objections
to the Magistrate Judge's Report and Recommendation. (ECF Nos. 34, 35.) Upon review,
however, the objections do not undermine the Magistrate Judge's recommendation. As such,
after de novo review of the pleadings and documents in the case, together with the Report and
Recommendation, and the objections thereto, the following order is entered.
AND NOW, this

22"'!y of May, 2013,

IT IS HEREBY ORDERED that the Report and Recommendation dated April 1, 2013

(ECF No. 33) is ADOPTED as the opinion ofthis Court.

IT IS FURTHER ORDERED that Petitioner's Motion to Reopen Case (ECF No. 25) is
GRANTED.
AND IT IS FURTHER ORDERED that Petitioner shall file an Amended Petition for

Writ of Habeas Corpus no later than thirty (30) days from the date of this order. Respondents
shall then have forty-five (45) days to file an Answer to the Amended Petition addressing, inter
alia, whether Petitioner has met the In re Dorsainvil, 119 F .3d 245 (3d Cir. 1997) exception and

this Court has jurisdiction over the petition, whether United States v. Santos, 553 U.S. 507
(2008) and Cueller v. United States, 553 U.S. 550 (2008) are substantive changes in statutory
law with retroactive application, and whether these cases have application to Petitioner's
conviction so as to make it more likely than not that no reasonable juror would have convicted
him.

Kim R. Gibson
United States District Judge

cc: Patrick R. Bennett
38551-054
Loretto
Federal Correctional Institution
P.O. Box 1000
Loretto, PA 15940
(Via U.S Postal Mail)
Counsel of Record
(Via ECF Electronic Mail)

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