Gonzalez v. Hollingsworth

Filing 7

ORDER adopting 4 Report and Recommendation; overruling 5 Objection to Report and Recommendation, and denying petition for writ of habeas corpus with prejudice. Signed by U.S. District Judge Karen E. Schreier on 2/13/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GUADALUPE GONZALEZ, JR.,
Petitioner,
vs.
MR. HOLLINGSWORTH, Warden,
Respondent.

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Civ. 12-4166-KES

ORDER DENYING
APPLICATION FOR WRIT OF
HABEAS CORPUS UNDER § 2241

Petitioner herein filed a pro se petition of habeas corpus in United States
District Court under 28 U.S.C. § 2241. The case was referred to United States
Magistrate Judge John Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for the
purpose of conducting any necessary hearings, including evidentiary hearings,
and submissions to this court of proposed findings of fact and recommendations
for the disposition of the case.
On October 29, 2012, Magistrate Judge Simko submitted his report and
recommendation for disposition of this case to the court. Petitioner timely filed
objections to the report and recommendation. De novo review is required for any
objections that are timely made and specific. See Thompson v. Nix, 897 F.2d 356
(8th Cir. 1990). Having reviewed the matter de novo, the court accepts the report
and recommendation of Magistrate Judge Simko in full.
Gonzalez argues that his prior conviction was not for a felony offense, even
though so classified by the state, and therefore under Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010), it should not have qualified as a felony for career
offender classification. A review of the record, however, indicates that Gonzalez

was in fact sentenced to 385 days’ imprisonment. See United States v. Guadalupe
Gonzalez, Jr., Case No. 5:06-cr-00802-1, Doc. 51 at 9. The fact that Gonzalez
served only 5 months of his 385-day sentence in custody does not convert his
felony conviction into a misdemeanor.
Gonzalez also supplied the court with a copy of United States of America v.
Haltiwanger, 637 F.3d 881 (8th Cir. 2011) as support for his argument. In
Haltiwanger, the court reviewed Haltiwanger’s record of conviction and concluded
that the statutory maximum sentence that may be imposed for a violation of the
drug tax stamp law was seven months and therefore Haltiwanger’s prior
conviction was only a misdemeanor. That is not the case here because Gonzalez
was actually sentenced to a term of imprisonment longer than one year.
In any event, Gonzalez cannot challenge the validity of his conviction or his
sentence in this district under § 2241. Such an attack must be brought under
§ 2255 in the district of the sentencing court. Matheny v. Morrison, 307 F.3d 709,
711 (8th Cir. 2002). Therefore, it is
ORDERED that the report and recommendation of Magistrate Judge Simko
is adopted in full and petitioner's pro se petition for habeas corpus is denied on
its merits with prejudice.
Dated February 13, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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