Opinion
1:05-cv-00926-OWW-DLB-HC, Order Adopting Findings and Recommendations (Doc. 7).
October 11, 2005
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK TO ENTER JUDGMENT ORDER TERMINATING ACTION
Petitioner is a federal prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
On August 16, 2005, the Magistrate Judge filed Findings and Recommendations that the Petition for Writ of Habeas Corpus be DISMISSED, and judgment be entered, terminating this action. These Findings and Recommendations were served on all parties and contained notice that any objections were to be filed within thirty (30) days from the date of service of that order. OnSeptember 12, 2005, Petitioner filed objections to the Findings and Recommendations.
In his objections, Petitioner contends that he is "actually innocence" of the crime as he was not eligible to be sentenced under 4B1.1 of the sentencing guidelines. However, Petitioner's claim does not present a claim of factual innocence of the underlying conviction; rather, Petitioner complains of constitutional error in the calculation of his sentence. Sentencing error does not constitute actual innocence as set forth by the Supreme Court in Bousley v. United States, 523 U.S. 614, 623 (1998) ("To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him."). Like the petitioner in Lorentsen, Petitioner fails to demonstrate actual innocence.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendations are supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate Judge's analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed August 16, 2005, are ADOPTED IN FULL;
2. The Petition for Writ of Habeas Corpus is DISMISSED;
3. The Clerk of Court enter judgment; and,
4. This action is therefore TERMINATED.
IT IS SO ORDERED.