Almonte v. Martin

Filing 5

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 2 Report and Recommendation. Signed by Judge Thad Heartfield on 12/27/2011. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DANIEL ALMONTE

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VS.

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M. MARTIN, WARDEN

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CIVIL ACTION NO. 1:11-CV-620

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Daniel Almonte, a federal prisoner currently confined at FCI Beaumont Low,
proceeding pro se, filed this petition for writ of habeas corpus contesting the legality of his
conviction.
The Court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends this action be dismissed.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Petitioner
filed objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and applicable law. See FED . R. CIV . P. 72(b).
After careful consideration, the Court finds the objections lacking in merit. As the
Magistrate Judge correctly concluded, petitioner has failed to demonstrate he was convicted of a
nonexistent offense and that his grounds for review were foreclosed by circuit law at the time
when the claim should have been raised in petitioner’s trial, appeal, or first Section 2255 motion.
See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Although petitioner cites
to Bond v. United States, – U.S. –, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) in support of his
claims, Bond does not establish that petitioner was convicted based upon conduct that did not
constitute a crime. In Bond, the Supreme Court held only that a person convicted of a federal
offense had standing to assert that in enacting the applicable criminal statute, Congress exceeded

its power under the Tenth Amendment. Id.
ORDER
Accordingly, the objections of petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.
SIGNED this the 27 day of December, 2011.

____________________________
Thad Heartfield
United States District Judge

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