Calero v. Benner et al, No. 4:2019cv00639 - Document 19 (N.D. Ala. 2019)

Court Description: MEMORANDUM OPINION - The Court agrees that Mr. Caleros April 29, 2019 § 2241 petition is premature under § 1231 and Zadvydas. Therefore, the Court accepts the magistrate judge's recommendation and dismisses this action without prejudice.A separate order will be entered. Signed by Judge Madeline Hughes Haikala on 10/21/2019. (KEK)

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Calero v. Benner et al Doc. 19 FILED 2019 Oct-21 AM 11:59 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION FRANCISCO ALBERTO CALERO, Petitioner, v. WILLIAM BARR, et al., Respondents. ) ) ) ) ) ) ) ) ) Case No.: 4:19-cv-639-MHH-GMB MEMORANDUM OPINION On August 16, 2019, the magistrate judge filed a report in which he recommended that this petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2241 be dismissed without prejudice. (Doc. 17). The magistrate judge advised Mr. Calero of his right to file objections to the report within 14 days. (Doc. 17, pp. 7-9). The Court has not received objections from Mr. Calero, and Mr. Calero did not respond to the Court’s June 2019 show cause order concerning his petition. (Doc. 16). A district court “may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A district court reviews legal conclusions in a report de novo and reviews for plain error factual findings to which no objection is made. Garvey v. Vaughn, 993 F.2d Dockets.Justia.com 776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847 F.2d 745, 749 (11th Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006). The Court agrees that Mr. Calero’s April 29, 2019 § 2241 petition is premature under § 1231 and Zadvydas. Therefore, the Court accepts the magistrate judge’s recommendation and dismisses this action without prejudice. A separate order will be entered. DONE this 21st day of October, 2019. _________________________________ MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE 2

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