Moreno v. USA

Filing 30

ORDER ADOPTING 24 REPORT AND RECOMMENDATION. The 1 Motion to Vacate, Set Aside or Correct Sentence is denied. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the petition has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 6/27/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ralph Douglas Moreno,

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Petitioner,

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v.

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No. CR-11-01865-PHX-ROS

United States of America,

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No. CV-16-01213-PHX-ROS

Respondent.

ORDER

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On February 6, 2017, Magistrate Judge James F. Metcalf issued a Report and

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Recommendation (“R&R”) recommending the “Motion to Vacate, Set Aside or Correct”

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be denied. Petitioner filed objections, Respondent filed a reply, and Petitioner filed a

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“traverse.” As set out below, the R&R will be adopted in full.

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Petitioner’s motion asserts four grounds for relief involving the performance of his

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trial and appellate counsel. Those grounds were 1) trial counsel was ineffective because

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he did not file a motion to sever; 2) trial counsel did not object to how Petitioner’s

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criminal history was used at sentencing; 3) appellate counsel did not provide Petitioner

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with access to all of his records while the appeal was pending; and 4) appellate counsel

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did not communicate adequately with Petitioner. The R&R correctly explained that to

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prevail on any of these claims Petitioner had to establish counsel’s performance was

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deficient and he suffered prejudice as a result. See Strickland v. Washington, 466 U.S.

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668 (1984).

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Petitioner’s claims.

The R&R correctly applied this framework when rejecting each of

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On the first claim involving trial counsel, Petitioner argues his trial counsel should

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have filed a separate motion to sever.

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unsuccessful motion to sever filed by a co-defendant. Petitioner has not identified any

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arguments regarding severance that his counsel should have made through a separate

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motion. Moreover, Petitioner has not explained how those arguments necessarily would

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have mandated a different result on the severance issue. Therefore, Petitioner has not

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established his counsel was ineffective under the governing standard.

Petitioner’s counsel, however, joined the

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Next, Petitioner claims his trial counsel should have objected to how his criminal

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history was treated at sentencing. As explained by the R&R, Petitioner’s criminal history

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was correctly calculated at the sentencing. Therefore, Petitioner has not established his

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counsel was ineffective by failing to object to a correct calculation.

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Finally, Petitioner’s two claims regarding his appellate counsel do not establish he

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is entitled to relief. As stated by the R&R, Petitioner has not explained “what more [his

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appellate] counsel could or should have done.” (Doc. 24 at 6). Even assuming Petitioner

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did not have access to his records during his appeal and that counsel did not communicate

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with Petitioner as much as Petitioner would have liked, there is no indication those

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actions had any impact on Petitioner’s appeal. Therefore, Petitioner has not established

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his appellate counsel was ineffective.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 24) is ADOPTED IN

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FULL. The Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is DENIED.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal are DENIED because the petition has not made a substantial

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showing of the denial of a constitutional right.

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Dated this 27th day of June, 2018.

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Honorable Roslyn O. Silver
Senior United States District Judge

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