Ramos Rogel v. United States of America
ORDER adopting 3 Report and Recommendation; overruling 4 Objection to Report and Recommendation; dismissing case, and denying certificate of appealability. Signed by Chief Judge Karen E. Schreier on 12/6/2012. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
a/k/a Carlos Ramos Rogel,
UNITED STATES OF AMERICA,
ORDER DENYING PETITION
Petitioner herein filed a pro se motion to vacate, set aside or correct a
sentence in United States District Court under 28 U.S.C. § 2255. The case was
referred to United States Magistrate Judge John Simko pursuant to 28 U.S.C.
§ 636(b)(1)(B) for the purpose of conducting any necessary hearings, including
On October 29, 2012, Magistrate Judge Simko submitted to the court his
report and recommendation for disposition of this case. Petitioner filed his
objection to the report and recommendation on November 13, 2012. De novo
review is required to any objections that are timely made and specific. See
Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990). Having reviewed the matter de
novo, the court finds that the magistrate judge’s report and recommendation
will be adopted in full.
Petitioner contends that the sentencing court improperly determined his
advisory guideline range under the Federal Sentencing Guidelines and that the
court has the jurisdiction to correct its procedural error at any time under
Federal Rule of Criminal Procedure 33(a). This petition has been filed pursuant
to 28 U.S.C. § 2255, however, rather than as a motion within his criminal case.
But even if the court considered this as a motion within the petitioner’s
criminal case, petitioner would not be successful. The grounds for petitioner’s
motion appear to be a mistake of law or fact made by the court. Because the
motion is not based on newly discovered evidence, Rule 33(b) requires that the
motion be made within 14 days after the verdict or finding of guilt. The motion
was made more than two years after the judgment of conviction was entered,
so it is not timely under Rule 33.
The court has reviewed the report and recommendation of Magistrate
Judge Simko and agrees with the conclusion that petitioner would not be
successful on the merits because his claimed sentencing error was or should
have been raised on direct appeal. Alternatively, the court agrees that it is
barred by the AEDPA one-year statute of limitations because the petition was
filed more than one year after May 30, 2011, when petitioner’s judgment of
conviction became final. Now, therefore it is
ORDERED that the report and recommendation of Magistrate Judge
Simko is accepted in full and petitioner's pro se motion to vacate, set aside, or
correct sentence (Docket 1) is denied in all respects. Petitioner’s objections
(Docket 4) are overruled.
IT IS FURTHER ORDERED that based upon the reasons set forth herein
and pursuant to Fed. R. App. P. 22(b), the court finds that petitioner has not
made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Therefore, a certificate of appealability is denied.
Dated December 6, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
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