Opinion
CRIMINAL ACTION NO. H-95-142-10, CIVIL ACTION NO. H-03-3227.
September 27, 2006
MEMORANDUM AND ORDER
Presently before the Court are Petitioner Jorge Louis Garcia's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 5178); the Government's response and motion to dismiss (Doc. 5217); Petitioner's response to the Government's motion to dismiss (Doc. 5226); the Magistrate Judge's Memorandum and Recommendation (Doc. 5492); and Petitioner's objections to the Magistrate Judge's Memorandum and Recommendation (Doc. 5498).
Petitioner objects to the Magistrate Judge's recommendation that he not be allowed to amend his motion to add a claim pursuant to United States v. Booker, 543 U.S. 220 (2005), and to the Magistrate conclusion that, in any event, Booker does not apply retroactively to cases brought under Title 28 United States Code Section 2255. Since the Magistrate Judge issued her report and recommendation, the Fifth Circuit Court of Appeals decided United States v. Gentry, 432 F.3d 600 (5th Cir. 2005). In Gentry, the Fifth Circuit held that "Booker does not apply retroactively on collateral review to an initial 28 U.S.C. § 2255 motion." Gentry, 432 F.3d at 600. Accordingly, Petitioner's objections are overruled.
After carefully considering the record and the applicable law, the Court concludes that the Government's motion to dismiss (Doc. 5217) should be GRANTED, Garcia's motion (Doc. 5178) should be DENIED, and that this § 2255 proceeding should be DISMISSED. The Court adopts the Magistrate Judge's Memorandum and Recommendation in full.