Rivera-Milan v. Martin

Filing 5

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed. The savings clause under 2255 does not violate the Suspension Clause of the U. S. Constitution. This claims lacks merit. Signed by Judge Marcia A. Crone on 1/25/12. (mrp, )

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UNITED STATES DISTRICT COURT VICTOR RIVERA-MILAN, Petitioner, versus M. MARTIN, Respondent. EASTERN DISTRICT OF TEXAS § § § § § § § § § CIVIL ACTION NO. 1:11-CV-638 MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Victor Rivera-Milan, a prisoner confined at the Federal Correctional Institution in Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The court ordered that this matter be referred 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 has submitted a Report and Recommendation of United States Magistrate Judge. The magistrate judge recommends dismissing the petition. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed objections to the magistrate judge’s Report and Recommendation. The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes the objections are without merit. In support of his claims, petitioner cites Bond v. United States, U.S. , 131 S. Ct. 2355 (2011). In Bond, the Supreme Court held that a person convicted of a federal offense had standing to assert that Congress exceeded its power under the Tenth Amendment in enacting a criminal statute. The Supreme Court did not hold that such a claim could be raised in a § 2241 petition, and the Court did not invalidate any federal criminal statutes. Blodgett v. Martin, 2011 WL 6187097, at *1 (5th Cir. Dec. 14, 2011) (unpublished). Petitioner also argues that the writ of habeas corpus has been suspended if relief is not available to him under 28 U.S.C. § 2255 or § 2241. This claim lacks merit. The savings clause under § 2255 does not violate the Suspension Clause of the United States Constitution. Wesson v. U.S. Penitentiary, Beaumont, 305 F.3d 343, 346-47 (5th Cir. 2002). ORDER Accordingly, petitioner’s objections 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 recommendation. SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 25th day of January, 2012. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 2

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