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Olivera v. Warden of FCI Edgefield

United States District Court, D. South Carolina

April 11, 2019

Jorge-Rojas Olivera #26639-009, Petitioner,
v.
Warden of FCI Edgefield, Respondent.

          ORDER

          JOSEPH F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Jorge-Rojas Olivera, (Petitioner), proceeding pro se, is an inmate incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, in the custody of the Federal Bureau of Prisons. Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the case was referred to the Magistrate Judge.

         The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”) and opines that this Court should dismiss the Petition in this case without prejudice and without requiring Respondent to file an answer. (ECF No. 7). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation.

         The Court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report of the Magistrate, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         Petitioner was advised of his right to object to the Report, which was entered on the docket on August 27, 2018. (ECF No. 7). Petitioner filed timely objections to the Report (“Objections”) on September 4, 2018. (ECF No. 10). Thus, this matter is ripe for review.

         The Report recites the factual and procedural background giving rise to this action. Briefly, on September 7, 2012, Petitioner entered a guilty plea to conspiracy to possess with intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine. On February 5, 2013, the district court sentenced Petitioner to 420 months' imprisonment. Thereafter, Petitioner filed an appeal challenging his sentence and conviction, which was denied by the Eighth Circuit on April 29, 2014. On February 13, 2015, Petitioner filed a § 2255 motion, which the district court denied. Petitioner then filed this § 2241 petition. (ECF No. 1).

         II. DISCUSSION

         In his § 2241 Petition, Petitioner alleges he is serving an illegal sentence. Petitioner cites to Nelson v. Colorado, 137 S.Ct. 1249 (2017) and argues that settled substantive law has changed such that the dismissed counts of his indictment may no longer be used to enhance his sentence. (ECF No. 1). Petitioner seeks resentencing.

         Petitioner claims Nelson changed settled substantive law by holding that only facts arising out of a conviction can be considered during sentencing. Petitioner argues that Nelson overruled United States v. Watts, 519 U.S. 148 (1997), which held that a sentencing court may consider acquitted conduct in calculating a sentence as long as the conduct has been proven by a preponderance of the evidence. Petitioner claims Nelson now prevents courts from considering dismissed or uncharged crimes at sentencing.

         The Magistrate Judge opines that the court lacks jurisdiction to consider the instant § 2241 petition because Petitioner cannot show that 28 U.S.C. § 2255 is inadequate to test the legality of his sentence thereby allowing Petitioner to file a 28 U.S.C. § 2241 petition under United States v. Wheeler. (ECF No. 7). Petitioner attempts to object to the Report (ECF No. 10); however, Petitioner mainly repeats his assertions from his Petition. (ECF No. 1). In light most favorable to Petitioner, he objects to the Magistrate Judge's Report by stating:

Petitioner will object to the report and recommendation on page 5 where the Magistrate Judge states that petitioner has not cited to any language in Nelson that directly or implicitly challenges the holding in Watts.
Petitioner will object to the report and recommendation on page 6 where the Magistrate Judge states that petitioner has failed to show that Nelson has been made ...

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