Gentry v. USA

Filing 19

ORDER: IT IS ORDERED overruling 17 Gentry's Objections to the Report and Recommendation. IT IS FURTHER ORDERED adopting 16 the Report and Recommendation of the Magistrate Judge as the Order of this Court. Gentry's Motion Under 28 U .S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody 1 is denied. IT IS FURTHER ORDERED denying any Certificate of Appealability and leave to proceed in forma pauperis on appeal. Signed by Judge Susan R Bolton on 12/20/2013. (ALS)

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NOT FOR PUBLICATION

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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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v.

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No. CV-12-02210-PHX-SRB
CR06-00464-PHX-SRB
ORDER

Ira W. Gentry,

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Defendant/Movant.

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On October 16, 2012, Defendant Ira Gentry (Gentry) filed a Motion under 28

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

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The Government filed a response on May 6, 2013 and Gentry replied on June 7, 2013. In

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his motion, Gentry raised 15 issues which are detailed on pages 7-8 of the Magistrate

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Judge’s Report and Recommendation filed July 3, 2013. The Magistrate Judge concluded

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only Gentry’s claim of ineffective assistance of counsel was properly considered in this §

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2255 Motion because all other issues were raised or should have been raised in Gentry’s

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direct appeal and, therefore, are not reviewable in a § 2255 proceeding.

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With respect to Gentry’s claims of ineffective assistance of counsel, the

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Magistrate Judge found the claims were premised primarily on Gentry’s contention that

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counsel should have pressed particular issues pretrial and in trial. All of these issues

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were also raised and decided adversely to Gentry in his direct appeal or in his other post-

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conviction motions. His arguments on the merits on these issues were all rejected.

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Therefore, Gentry has not established his counsel’s performance was ineffective or that

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he was prejudiced in anyway by any alleged failure of counsel to press non-meritorious

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issues.

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dismissed with prejudice.

The Magistrate Judge recommended that Gentry’s motion be denied and

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On July 17, 2013 Gentry filed timely objections to the Magistrate Judge’s Report

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and Recommendation which the Court finds to be without merit. Rather the Court finds

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itself in agreement with the Report and Recommendation of the Magistrate Judge.
IT IS ORDERED overruling Gentry’s objections to the Report and

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Recommendation.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the

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Magistrate Judge as the Order of this Court.
IT IS FURTHER ORDERED that Gentry’s Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is denied.

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IT IS FURTHER ORDERED denying any Certificate of Appealability and leave

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to proceed in forma pauperis on appeal. The denial of the Petition is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable and

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because Petitioner has not made a substantial showing of the denial of a constitutional

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right.

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Dated this 20th day of December, 2013.

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