Zenon v. Rivera

Filing 7

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition for writ of habeas corpus be dismissed. Signed by Judge Marcia A. Crone on 4/30/12. (mrp, )

UNITED STATES DISTRICT COURT

CHARLES RENE ZENON,
Petitioner,
versus
C. RIVERA, WARDEN,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:12-CV-63

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Charles Rene Zenon, a federal prisoner currently confined at FCI Beaumont
Low, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends the petition for writ of habeas corpus 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 the applicable law. See FED . R. CIV . P.
72(b).
After careful consideration, the Court finds petitioner’s objections are without merit. To
meet the first, or actual innocence prong of the Reyes-Requena test, petitioner must prove that,
based on a retroactively applicable Supreme Court decision, he was convicted for conduct that did

not constitute a crime. See Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001), cert.
denied, 534 U.S. 1001, 122 S.Ct. 476, 151 L.Ed.2d 390 (2001); see also Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). Petitioner does not rely on a retroactively
applicable Supreme Court decision but rather the Fair Sentencing Act of 2010 as it amended
21 U.S.C. § 841(b). As the Magistrate Judge correctly concluded, this is insufficient to meet the
Reyes-Requena test. Furthermore, the Fair Sentencing Act of 2010 does not apply retroactively,
and this argument has been foreclosed by the Fifth Circuit. See United States v. Bennett, 664 F.3d
997, 1014 (5th Cir. 2011); United States v. Tickles, 661 F.3d 212 (5th Cir. 2011); United States
v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
ORDER
Accordingly, the objections of the 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 at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 30th day of April, 2012.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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