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Case 5:12-cv-00094-MHS-CMC Document 6 Filed 09/19/13 Page 1 of 2 PageID #: 50

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

TORIBIO ARRIAGA-GUERRERO

VS.

§

§

UNITED STATES ATTORNEY GENERAL §

CIVIL ACTION NO. 5:12cv94

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Petitioner Toribio Arriaga-Guerrero, an inmate confined at the Federal Correctional

Institution in Texarkana, Texas, proceeding pro se, brought this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241.

The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate

Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.

The Magistrate Judge recommends the petition be denied.

The Court has received and considered the Report and Recommendation of United States

Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available

evidence. Petitioner filed objections to the magistrate judge’s Report and Recommendation. This

requires a de novo review of the objections in relation to the pleadings and the applicable law. See

FED. R. CIV. P. 72(b).

After careful consideration, the Court concludes petitioner’s objections should be overruled.

Petitioner’s petition does not meet the criteria required to support a claim under the savings clause

of 28 U.S.C. § 2255. See Padilla v. United States, 416 F.3d 424 (5th Cir. 2005); Reyes-Requena v.

United States, 243 F.3d. 893 (5th Cir. 2001). The recent Supreme Court decisions in Lafler v.

Case 5:12-cv-00094-MHS-CMC Document 6 Filed 09/19/13 Page 2 of 2 PageID #: 51

Cooper, U.S. , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, U.S. , 132

S.Ct. 1399, 182 L.Ed.2d 379 (2012), did not announce new rules of constitutional law because they

merely applied the Sixth Amendment right to counsel to a specific factual context. See In re King,

697 F.3d 1189 (5th Cir. 2012). Further, as the Fifth Circuit recognized in United States v. Rivas-

Lopez, 678 F.3d 353 (5th Cir. 2012), Lafler and Frye affirmed the Fifth Circuit’s existing case law

that the Sixth Amendment’s protections extend to the plea process. See Rivas-Lopez, 678 F.3d at

357. Finally, neither decision suggests that petitioner may have been convicted of a nonexistent

offense. Thus, this petition should be dismissed.

O R D E R

Accordingly, petitioner’s objections are OVERRULED. The findings of fact and

conclusions of law of the magistrate judge are correct and the report of the magistrate judge is

ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s

recommendations.

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It is SO ORDERED.. ____________________________________MICHAEL H. SCHNEIDERUNITED STATES DISTRICT JUDGESIGNED this 18th day of September, 2013.