Montgomery v. Daniels

Filing 6

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 2 Report and Recommendation. Signed by Judge Thad Heartfield on 12/4/2015. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
BERNARD VINCENT MONTGOMERY

§

VS.

§

CHARLES A. DANIELS

§

CIVIL ACTION NO. 1:14cv304

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Bernard Vincent Montgomery, 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 Zack Hawthorn, 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 he is actually innocent based on the
recent Supreme Court decision in Alleyne v. United States,

U.S.

, 133 S.Ct. 2151, 186 L.Ed.2d

314 (2013). However, the Fifth Circuit has determined that Alleyne addressed sentencing issues and
does not apply retroactively on collateral review. See United States v. Olvera, 775 F.3d 726, 730
(5th Cir. 2015); Whittaker v. Chandler, 574 F. App’x 448, 449 (5th Cir. 2014) (Neither Alleyne nor
Descamps is a retroactively available Supreme Court decision indicating that [petitioner] was
convicted of a nonexistent offense for § 2241 petition). Further, 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). Therefore, petitioner’s objections are without merit
and should be overruled.
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 4 day of December, 2015.

____________________________
Thad Heartfield
United States District Judge

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