Isaac v. United States of America

Filing 13

ORDER that that the 12 Magistrate Judges Report and Recommendation is accepted and adopted by the Court. IT IS FURTHER ORDERED that the movant Timothy K. Issac's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is denied and that this action is dismissed. The Clerk of the Court shall enter judgment accordingly and no certificate of appealability shall issue. Signed by Senior Judge Paul G Rosenblatt on 10/17/2012. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,

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vs.
Timothy K. Isaac,
Defendant/Movant.

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No. CV-11-0827-PHX-PGR (ECV)
No. CR-08-0036-PHX-PGR
ORDER

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Having considered de novo the Report and Recommendation of Magistrate

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Judge Voss notwithstanding that no party has filed any objections to the Report and

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Recommendation, the Court finds that the Magistrate Judge correctly concluded that

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the movant’s motion filed pursuant to 28 U.S.C. § 2255 should be denied in its

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entirety.

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First, the movant claims that his plea of guilty on June 23, 2009 to nine fraud-

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related felonies was not knowingly and intelligently made due to a stroke he suffered

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in 2003 that left him mentally incompetent and physically disabled, and that he

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received ineffective assistance from one or more of his three retained attorneys in

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part because they apparently failed to determine whether his mental and physical

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disabilities prevented him from properly entering into the plea agreement. The Court

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agrees with the Magistrate Judge that nothing in the record establishes that the

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movant was not competent to plead guilty, and that in fact the record as it relates (1)

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to the movant’s post-stoke business endeavors in the years prior to his decision to

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plead guilty, and (2) to his statements at his change of plea hearing, as well as his

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statements and the statements of his supporters at his sentencing, fully confirm that

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he was not suffering from any mental impairment at the time he entered into this plea

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agreement.

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Second, the Court also agrees with the Magistrate Judge that the movant’s

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other ineffective assistance of counsel-related claims, i.e., that one of his attorneys

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had a conflict of interest, that one of his attorneys had no criminal experience, and

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that one or more of his attorneys’ misrepresented that he would receive probation

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if he pleaded guilty, are also all belied by the record, particularly as it relates to the

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movant’s statements at the change of plea hearing. Therefore,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation

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(Doc. 12) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the movant Timothy K. Issac’s Motion Under

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28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal

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Custody is denied and that this action is dismissed. The Clerk of the Court shall

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enter judgment accordingly.

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IT IS FURTHER ORDERED that no certificate of appealability shall issue

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because the movant has not made a substantial showing of the denial of a

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constitutional right, and that the movant should not be allowed to appeal in forma

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pauperis.

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DATED this 17th day of October, 2012.

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