Velasco v. USA

Filing 18

ORDER accepting 9 Magistrate Judge Bade's Report and Recommendation. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by Person in Federal Custody (Doc. 1 ) is denied and dismissed. The Clerk of the Court shall enter judgment accordingly and terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Motion Under 28 U.S.C. 28 U.S.C. § 2255 to Vacate, Set Aside o r Correct Sentence by Person in Federal Custody the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Movant has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 12/7/15. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny Gabriel Velasco,
Petitioner,

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v.

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United States of America,

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Respondent.

No. CV-15-01389-PHX-NVW (BSB)
CR-08-00668-PHX-NVW
ORDER AND
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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Before the Court are Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set

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Aside or Correct Sentence by Person in Federal Custody (Doc. 1), United States

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Magistrate Judge Bade’s Report and Recommendation (Doc. 9) and Petitioner’s

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Objections to the Magistrate’s Report and Recommendation (Docs. 12, 17).

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The Court has considered Petitioner’s objections and reviewed the Report and

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Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that

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the Court must make a de novo determination of those portions of the Report and

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Recommendation to which specific objections are made).

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magistrate judge’s recommended disposition within the meaning of Rule 72(b), Fed. R.

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Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the

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district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate”).

The Court accepts the

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The prior plea agreements or other documents Petitioner seeks could not affect his

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Petition. As a matter of law his prior convictions resulting in his mandatory minimum

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sentence as an armed career criminal were all crimes of violence based on elements, not

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on the residual clause. Moreover, any challenge based on elements is long time barred.

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IT IS THEREFORE ORDERED that the Report and Recommendation of

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Magistrate Judge Bade (Doc. 9) to deny Petitioner’s motion under 28 U.S.C. § 2255 is

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accepted.

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IT IS FURTHER ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside or Correct Sentence by Person in Federal Custody (Doc. 1) is denied

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and dismissed.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly and terminate this action.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Motion Under 28 U.S.C. 28 U.S.C. § 2255 to Vacate, Set Aside or

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Correct Sentence by Person in Federal Custody the Court FINDS:

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Appealability and leave to proceed in forma pauperis on appeal are denied because

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Movant has not made a substantial showing of the denial of a constitutional right.

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Certificate of

Dated this 7th day of December, 2015.

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Neil V. Wake
United States District Judge

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