Opinion
Case No. 4:05-cv-00255-MP-AK.
September 7, 2005
ORDER
This matter is before the Court on Doc. 3, Report and Recommendation of Magistrate Judge Kornblum recommending that Defendant's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied and the cause dismissed with prejudice. The Magistrate Judge filed the Report and Recommendation Monday, August 1, 2005. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made. Petitioner filed an objection to the Report and Recommendation in which Petitioner objected to all of the Magistrate Judge's findings. Therefore, this Court has given de novo review to Petitioner's claims in their entirety.
Having considered the Report and Recommendation and all objections thereto timely filed, I have determined that the Report and Recommendation should be adopted. The Report and Recommendation of the Magistrate Judge clearly and correctly states the approach taken by the Eleventh Circuit that the holding in Booker does not apply retroactively to § 2255 cases on collateral review. See Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). Thus, the Magistrate Judge was correct in his conclusion that "the savings clause of § 2255 is not triggered to allow this § 2241 habeas corpus petition to proceed." (Doc. 3).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation is adopted and incorporated by reference in this order.
2. Defendant's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, is DENIED, and the cause is DISMISSED WITH PREJUDICE.
DONE AND ORDERED