Leon-Sanchez v. United States of America

Filing 31

ORDER overruling the objections to the Magistrate Judge's Report and Recommendations. ORDER adopting the Report and Recommendation 26 of the Magistrate Judge as the Order of this Court. ORDER denying the Motion to Vacate, Set Aside or Correct Sentence by Person in Federal Custody. ORDER denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because the denial of the Motion to Vacate is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and because Defendant has not made a substantial showing of the denial of a constitutional right. Signed by Judge Susan R Bolton on 8/12/11. (TLJ)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, Plaintiff-Respondent, 10 11 vs. 12 Victor Manuel Leon-Sanchez, 13 Defendant-Movant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV10-1615-PHX-SRB (ECV) CR07-0932-PHX-SRB ORDER 15 16 On January 13, 2011, Defendant filed his Amended Motion to Vacate, Set Aside or 17 Correct Sentence by person in federal custody pursuant to 28 U.S.C. ยง 2255. In his motion 18 Defendant raised two claims of ineffective assistance of counsel. He argued that his lawyer 19 coerced him into entering into a plea agreement which he did not understand and that his 20 lawyer failed to present any mitigating evidence at sentencing. The United States responded 21 to the amended motion and argued that Defendant's express waiver of his right to file for 22 collateral review contained in his plea agreement precluded the claim of ineffective 23 assistance of counsel at sentencing and that the waiver should be enforced. The United 24 States also argued that the claim of ineffective assistance of counsel with respect to 25 Defendant's alleged lack of understanding of the plea agreement was also waived in the plea 26 agreement and that the waiver should be enforced. Alternatively, the United States' argued 27 28 1 that neither claim had merit and that the motion should be denied. No reply was filed in 2 support of the 2255 motion. 3 On June 30, 2011 the Magistrate Judge issued his Report and Recommendation. With 4 respect to the claim of ineffective of counsel at sentencing the Magistrate Judge pointed out 5 that the United States had argued in its response that Defendant's claims were foreclosed by 6 his waiver of collateral review in his plea agreement and that there had been no challenge 7 made to the validity of that waiver. The Magistrate Judge also noted that not only was the 8 waiver of appeal rights not addressed in the 2255 motion but Defendant did not file a reply 9 to address the United States' assertion of the waiver. The Magistrate Judge concluded that 10 the waiver should be enforced with respect to the claim of ineffective assistance of counsel 11 at sentencing and the 2255 motion denied. The Magistrate Judge also recommended that the 12 claim of ineffective assistance of counsel by allegedly not informing Defendant of the 13 consequences of his plea agreement should be denied on the merits because Defendant failed 14 to satisfy the prejudice prong of the Strickland standard. 15 In the Report and Recommendation the parties were specifically advised of their rights 16 to file specific written objections with the Court within 14 days of the date of service of the 17 Report and Recommendation. They were cautioned that failure to timely object may result 18 in the acceptance of the Report and Recommendation by the district court without further 19 review and that failure to timely object to any factual determinations would be considered 20 a waiver of the right to appellate review of the findings of fact in an order of judgment 21 entered pursuant to the Report and Recommendation. 22 Defendant's counsel filed objections to the Magistrate Judge's Report and 23 Recommendation on July 20, 2011. The objections addressed only the claim of ineffective 24 assistance of counsel at sentencing. Defendant did not object to the Magistrate Judge's 25 recommendation that the claim of ineffective assistance of counsel because counsel allegedly 26 did not adequately inform Defendant of the consequences of his plea agreement be denied 27 on the merits. However, also not addressed in the objections was the basis for the Magistrate 28 Judge's recommendation for denial of the claim of ineffective assistance of counsel at -2- 1 sentencing. Defendant only argued the merits of his claim and failed again to address the 2 issue of his valid waiver of appeal rights and rights to collateral review in his plea agreement. 3 The United States' responded in opposition to the objections. 4 With respect to the Report and Recommendation of the Magistrate Judge that 5 Defendant's claim of ineffective assistance of counsel based on an alleged lack of being 6 adequately informed of the consequences of his plea agreement, the Court will adopt the 7 recommendation of the Magistrate Judge without objection. 8 With respect to the claim of ineffective assistance of counsel at sentencing, 9 Defendant's objections fail in any way to address the issue of waiver found by the Magistrate 10 Judge. This Court's de novo review of the record shows clear evidence that Defendant 11 understood the waiver and entered his plea knowing that he would not be permitted to appeal 12 or collaterally attack his conviction and sentence so long as his sentence was consistent with 13 his plea agreement. The Court agrees with the Magistrate Judge that the waiver should be 14 enforced with respect to the claim of ineffective assistance of counsel at sentencing. 15 Therefore; 16 17 IT IS ORDERED overruling the objections to the Magistrate Judge's Report and Recommendations. 18 19 IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. 20 21 IT IS FURTHER ORDERED denying the Motion to Vacate, Set Aside or Correct Sentence by Person in Federal Custody. 22 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 23 proceed in forma pauperis on appeal because the denial of the Motion to Vacate is justified 24 by a plain procedural bar and jurists of reason would not find the procedural ruling debatable 25 /// 26 /// 27 /// 28 -3- 1 and because Defendant has not made a substantial showing of the denial of a constitutional 2 right. 3 4 DATED this 12th day of August, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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