Rosales v. Watson

Filing 11

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 4 Report and Recommendation. Signed by District Judge Thad Heartfield on 1/2/2019. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
VIRGILIO ROSALES

§

VS.

§

WARDEN, USP BEAUMONT

§

CIVIL ACTION NO. 1:18-CV-81

MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Virgilio Rosales, a federal prisoner currently confined at USP Beaumont,
proceeding pro se, filed 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 denying the petition.
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 Report and Recommendation of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
P. 72(b).
After careful consideration, the Court finds the objections lacking in merit. As outlined by
the Magistrate Judge, the Supreme Court has not expressly held that Mathis applies retroactively to
cases on collateral review. Mathis v. United States, 136 S.Ct. 2243 (2016). The Fifth Circuit’s
decision in Hinkle does not compel a different result as the court applied Mathis on direct appeal,
not collateral review. United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). Moreover, Hinkle was
decided by the Fifth Circuit Court of Appeals and not by the Supreme Court.
Finally, petitioner challenges a sentencing enhancement. Thus, petitioner’s challenge does
not suggest that he was convicted of a nonexistent offense. See in re Bradford v. Tamez, 660 F.3d
226, 230 (5th Cir. 2011) (“a claim of actual innocence of a career offender enhancement is not a

claim of actual innocence of the crime of conviction and, thus, is not the type of claim that warrants
review under § 2241); Padilla v. United States, 16 F.3d 424, 427 (5th Cir. 2005); Kinder v. Purdy,
222 F.3d 209, 213-14 (5th Cir. 2000). Petitioner’s objections lack merit.
SIGNED this the 2 day of January, 2019.

____________________________
Thad Heartfield
United States District Judge

2