McDade v Roy, No. 5:2008cv00138 - Document 9 (E.D. Tex. 2009)

Court Description: MEMORANDUM AND OPINION overruling petitioner's objections and adopting report and recommendation of magistrate.. Signed by Judge T. John Ward on July 7, 2009. (rml, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION JAMES MCDADE § VS. § KEITH ROY § CIVIL ACTION NO. 5:08-CV-138 MEMORANDUM ORDER OVERRULING PETITIONER S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE S REPORT AND RECOMMENDATION Petitioner James McDade, a prisoner confined at the Federal Correctional Institution in Texarkana, Texas, brought 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 F. Giblin, 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). On January 21, 2009, the United States Supreme Court remanded a case to the Ninth Circuit for further consideration in light of United States v. Santos, U.S. , 128 S. Ct. 2020 (2008). Moreland v. United States, U.S. , 120 S. Ct. 997 (2009). Petitioner argues that the Supreme Court s action indicates that the holding in Santos is not limited to cases involving illegal gambling. Whether the Supreme Court eventually broadens the application of Santos has no bearing on this case. Petitioner may not pursue habeas relief under Section 2241 because his claims do not meet the requirements set forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Therefore, after careful consideration, the court concludes the objections are without 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 this case in accordance with the magistrate judge s recommendation. SIGNED this 7th day of July, 2009. __________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE 2

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