Porch v. Watson

Filing 7

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 3 Report and Recommendation. Signed by District Judge Marcia A. Crone on 10/24/2018. (bjc, )

UNITED STATES DISTRICT COURT

MARLON LEROY PORCH,
Petitioner,
versus
WARDEN, USP BEAUMONT,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:18-CV-122

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Marlon Leroy Porch, 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 the petition for writ of habeas corpus be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, 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 a careful review, this 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.
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 recommendations of the
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Magistrate Judge.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 24th day of October, 2018.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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