Murrieta-Perez v. United States of America

Filing 11

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION (Doc. 7). ORDER denying the Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1). ORDER denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Murrieta-Perez has not made a substantial showing of the denial of a constitutional right. Signed by Judge Paul G Rosenblatt on 11/2/10. (TLJ)

Murrieta-Perez v. United States of America

Doc. 11

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) Plaintiff/Respondent, ) ) v. ) ) Jesus A. Murrieta-Perez, ) ) Defendant/Movant. )

CIV 10-0614-PHX-PGR (DKD) CR 08-1217-PHX-PGR ORDER

Currently before the Court is the Report and Recommendation (Doc. 7) of Magistrate Judge Duncan, based on Jesus A. Murrieta-Perez's Motion to Vacate, Set Aside, or Correct Sentence. In his motion filed pursuant to 28 U.S.C. § 2255, Murrieta-Perez challenges his conviction for Escape from a Federal Facility and this Court's imposition of a 10-month term of imprisonment. Murrieta-Perez argues that prior to sentencing, Mr. Diaz1 incorrectly told him that he would receive 54 months on the trafficking conviction (the case before Judge Teilborg) to be served concurrent with a 10-month term on the escape conviction (the case before this Court)(Doc. 22). Murrieta-Perez argues that he received ineffective assistance of counsel because he was not properly advised of the sentence he would receive. He further contends that because of the misinformation regarding the sentence, he maintains that he was too late to timely file an appeal.

In fact, Mr. Diaz was not Murrieta-Perez's attorney on the escape charge, rather Mr. Diaz represented him on the trafficking charge only. Murrieta-Perez was represented by S. Magnus Eriksson on the escape charge, and he has made no claim of ineffective assistance concerning Eriksson's representation.
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The Court agrees with Magistrate Judge Duncan's findings that Murrieta-Perez cannot claim to have been misled while having acknowledged that he reviewed the Presentence Report, having made no objection to it, having heard the arguments for and against consecutive sentencing, and having informed this Court at sentencing that he understood the Court's judgment and he did not dispute the consecutive nature of the sentence at the time it was imposed. Additionally, Murrieta-Perez was informed prior to sentencing that this Court had the discretion to impose either a concurrent or consecutive sentence. Finally, his mistaken reference to Mr. Diaz as his attorney in the escape case, his lack of any allegation of ineffective assistance against Mr. Eriksson, and the lack of any evidence of ineffective assistance in the record, renders his claim without merit. Therefore, having reviewed de novo the Report and Recommendation and no party having filed any objection thereto, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 7) is ACCEPTED and ADOPTED by the Court. IT IS FURTHER ORDERED DENYING the Motion to Vacate, Set Aside, or Correct Sentence. (Doc. 1) IT IS FURTHER ORDERED DENYING a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Murrieta-Perez has not made a substantial showing of the denial of a constitutional right. DATED this 2nd day of November, 2010.

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