Morales v. Lara

Filing 7

ORDER overruling objections and adopting 4 Report and Recommendation. Signed by Judge Ron Clark on 1/13/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSE ROLANDO MORALES

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 1:16cv356

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jose Rolando Morales, proceeding pro se, filed the above-styled petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. The court previously referred this matter to the
Honorable Zack Hawthorn, 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 record and pleadings. Petitioner filed objections to the Report and
Recommendation. The court must therefore conduct a de novo review of the objections.
A federal criminal conviction may be challenged in a habeas petition filed pursuant to 28
U.S.C. § 2241 only if the challenge is based on a retroactively applicable Supreme Court decision
that establishes the petitioner was convicted of a nonexistent offense. Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). Petitioner does not rely on a retroactively applicable
Supreme Court decision. Moreover, he challenges the sentence imposed as a result of the
conviction, rather than the conviction itself. As a result, his challenge may not be asserted in a
petition filed pursuant to Section 2241. Ali v. Carvajal, 654 F. App’x 172, 172-73 (5th Cir. 2016)
(citing Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005)).

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
Jan 13, 2017