Porter v. Fox et al

Filing 21

ORDER overruling objections and adopting 17 Report and Recommendation. Signed by Judge Ron Clark on 6/1/16. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
RICHARD PORTER

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VS.

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JOHN B. FOX

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CIVIL ACTION NO. 1:13cv269

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Richard Porter, an inmate confined at the United States Penitentiary at Beaumont,
Texas, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.
The Court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable orders of this court. The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge
concerning this case. 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, along with the records, pleadings and all available evidence. Petitioner filed
objections to the Report and Recommendation.
The Court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. After careful consideration, the Court is of the opinion petitioner’s objections
are without merit.
Petitioner is challenging two convictions for violating 18 U.S.C. § 924(c). One conviction
was based on using a firearm to shoot a person in connection with a conspiracy to distribute heroin.
The other conviction was based on using a firearm to shoot a person in connection with the
distribution of crack cocaine. In order to be entitled to relief in this proceeding, petitioner must
establish that he is asserting a claim which is based on a retroactively applicable decision of the
Supreme Court that establishes he was convicted of a nonexistent offense. He must also show that

the claim was foreclosed by established circuit law at the time it could have been raised during trial,
on direct appeal, or in connection with an initial motion to vacate, set aside or correct sentence filed
pursuant to 28 U.S.C. § 2255. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Initially, petitioner relies on the Supreme Court’s decision in United States v. Ressam, 553
U.S. 272 (2008). However, the Magistrate Judge correctly concluded that Ressam is not relevant to
petitioner’s conviction.
With respect to the conviction regarding the conspiracy to distribute heroin, petitioner also
relies on the Supreme Court’s decision in Rosemond v. United States, 134 S. Ct. 1240 (2014).
However, Rosemond does not demonstrate petitioner was convicted of a nonexistent offense. In its
opinion concerning petitioner’s direct appeal, the United States Court of Appeal for the Fifth Circuit
stated there was evidence that petitioner ordered a co-defendant to kill Leonard Morgan because
Morgan was invading petitioner’s heroin-trafficking territory. United States v. Davis, 124 F. App’x
838, 843 (5th Cir. 2005). As a result, petitioner fails to demonstrate Rosemond establishes he was
convicted of a nonexistent offense.
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 accordance with the recommendation of the
Magistrate Judge.
So ORDERED and SIGNED this 1 day of June, 2016.

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Ron Clark, United States District Judge