Torres v. Chapa

Filing 5

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed. Signed by Judge Marcia A. Crone on 6/27/17. (mrp, )

UNITED STATES DISTRICT COURT

JORGE LUIS TORRES,
Petitioner,
versus
RACHEL CHAPA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:17-CV-165

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jorge Luis Torres, a 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 Zack Hawthorn, United
States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and
orders of this court. The magistrate judge has submitted a Report and Recommendation of United
States Magistrate Judge. 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, pleadings, and all available evidence. 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 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 claims concerning the validity of his
sentence under § 2241.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

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conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 27th day of June, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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ADOPTED. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation.

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