Pulido-Trujillo v. United States of America

Filing 3

ORDER ADOPTING REPORT AND RECOMMENDATION 2 . DENYING the motion to vacate, set aside, or correct sentence 1 . Signed by Judge Frederick J Martone on 10/15/09. (DMT, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Joel Pulido-Trujillo, Plaintiff, vs. United States of America, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No. CR-05-0170-PHX-FJM No. CV-07-1645-PHX-FJM ORDER

The court has before it Pulido-Trujillo's (movant) motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (doc. 1), and the report and recommendation by the United States Magistrate Judge (doc. 2). No objection to the report and recommendation was filed. On December 22, 2005, movant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine. As part of the plea agreement, movant waived his right to appeal the entry of judgment against him, the imposition of sentence, and the right to collaterally attack his conviction, including a challenge under 28 U.S.C. § 2255. On May 1, 2006, movant was sentenced to 120 months imprisonment, followed by five years of supervised release. On May 9, 2006, movant filed a notice of appeal. The Ninth Circuit Court of Appeals dismissed the appeal in light of the valid appeal waiver. Movant then filed the present § 2255 action.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Magistrate Judge recommends denying the motion because movant knowingly and expressly waived his right to collaterally attack his sentence. Moreover, the Magistrate Judge concludes that movant's allegations of ineffective assistance of counsel are unsupported by the record. The court accepts the recommended decision of the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). Accordingly, IT IS ORDERED DENYING the motion to vacate, set aside, or correct sentence (doc. 1). DATED this 15th day of October, 2009.

-2-