Morgan v. Rivera

Filing 7

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 4 Report and Recommendation. Signed by Judge Thad Heartfield on 11/17/2014. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DWAYNE D. MORGAN

§

VS.

§

C.V. RIVERA

§

CIVIL ACTION NO. 1:14cv117

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Dwayne D. Morgan, an inmate confined at the Federal Correctional Complex in
Beaumont, Texas, proceeding pro se, brought this 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 laws and orders of this court.
The Magistrate Judge recommends the petition be dismissed.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, 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 concludes petitioner’s objections should be overruled.
Petitioner’s petition does not meet the criteria required to support a claim under the savings clause
of 28 U.S.C. § 2255. See Padilla v. United States, 416 F.3d 424 (5th Cir. 2005); Reyes-Requena v.
United States, 243 F.3d. 893 (5th Cir. 2001). Petitioner argues that his sentence enhancement is not
proper in light of the recent Supreme Court decision in Descamps v. United States,

U.S.

,

133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). However, a claim of actual innocence of a sentencing
enhancement is not a claim of actual innocence of the crime of conviction. See In re Bradford, 660
F.3d 226, 230 (5th Cir. 2011); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also
Dority v. Roy, 402 F. App’x 2 (5th Cir. Nov. 8, 2010) (claim of actual innocence of armed career
offender enhancement is not sufficient to satisfy savings clause); Hartfield v. Joslin, 235 F. App’x
357, 358 (5th Cir. 2007) (claim of actual innocence of career offender enhancement is not sufficient
to satisfy savings clause). Thus, petitioner has not satisfied the actual innocence prong of ReyesRequena. Additionally, petitioner’s grounds for review are not based on a retroactively applicable
Supreme Court decision. The Supreme Court’s decision in Descamps addressed sentencing issues
and is not retroactively applicable.

See Whittaker v. Chandler, ___ F. App’x ___, 2014 WL

2940449 (5th Cir. July 1, 2014) ([N]either Alleyne nor Descamps is a retroactively available
Supreme Court decision indicating that [petitioner] was convicted of a nonexistent offense).
Accordingly, petitioner does not meet the criteria required to support a claim under the savings
clause of § 2255. Therefore, the petition should be dismissed.
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
recommendations.
SIGNED this the 17 day of November, 2014.

____________________________
Thad Heartfield
2
United States District Judge