Serrano-Benitez v. Chappa
ORDER overruling objections and adopting 2 Report and Recommendation. Signed by Judge Ron Clark on 5/6/17. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUIS A. SERRANO-BENITEZ
CIVIL ACTION NO.
ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Luis A. Serrano-Benitez, a federal prisoner confined at the Federal Correctional
Institution in Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
The court ordered that this matter be referred 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 dismissing the petition.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. Petitioner filed objections to the
Magistrate Judge’s Report and Recommendation.
The court has conducted 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 the
objections are without merit.
Petitioner’s claims do not challenge the manner in which his sentence is being executed.
Rather, they attack on the legality of his sentence. A claim challenging the legality of a sentence
generally must be brought under 28 U.S.C. § 2255, not § 2241. Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000).
Circuit precedent holds that the savings clause of § 2255, which in some instances allows a
petitioner to proceed under § 2241, “applies to a claim: (i) that is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been convicted of a
nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have
been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States,
243 F.3d 893 (5th Cir. 2001). As the Magistrate Judge concluded, petitioner failed to meet the first
prong of the Reyes-Requena test. Petitioner’s claims do not demonstrate that he was convicted of
“a nonexistent offense” as required by the actual innocence prong of Reyes-Requena. Therefore, the
petitioner may not pursue his claim concerning his sentence under § 2241.
Accordingly, petitioner’s objections (document no. 3) are OVERRULED. The findings of
fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate
Judge (document no. 2) is ADOPTED. A final judgment will be entered in this case in accordance
with the Magistrate Judge’s recommendation.
So ORDERED and SIGNED this 6 day of May, 2017.
Ron Clark, United States District Judge
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