Opinion
CIVIL ACTION NO.: CV508-018.
April 8, 2009
ORDER
After an independent and de novo review, the undersigned concurs with the Magistrate Judge's Report and Recommendation, to which Objections have been filed. In his Objections, Petitioner Christopher Green ("Green") directs the Court's attention toHarris v. United States, 149 F.3d 1304 (11th Cir. 1998), to support his position that 28 U.S.C. § 2241 is the proper avenue for him to attack the execution of his sentence, not his conviction. In Harris, the Eleventh Circuit Court of Appeals reiterated its previous position that "a district court lacks jurisdiction to enhance a sentence unless the government strictly complies with the procedural requirements of [21 U.S.C.] § 851(a)." 149 F.3d at 1306. Section 851(a) provides, in relevant part:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
Harris's sentence was enhanced based on a prior conviction based on the government's § 851 enhancement notice which was filed after the district court conducted petitioner's plea hearing.Harris, 149 F.3d at 1305.
Neither Harris nor the other cases cited by Green support his position. Green's sentence was not enhanced based on a section 851 notice which was filed by the Government in contravention of section 851.
For the reasons discussed in the Magistrate Judge's Report, Green's remaining Objections are without merit. The Magistrate Judge's Report and Recommendation is adopted as the opinion of the Court. Green's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is DISMISSED. The Clerk of the Court is directed to enter the appropriate judgment of dismissal.