Heredia-Nieblas v. USA

Filing 21

ORDER: The Report and Recommendation of the Magistrate Judge is adopted as the Order of this Court. Grounds One, Two and Three of Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C.  7; 2255 are denied and Ground Four is GRANTED. IT IS FURTHER ORDERED directing the Clerk of Court to vacate and reenter the judgment entered on December 7, 2015 in CR15-00522-PHX-SRB to permit Defendant to file a notice of appeal. IT IS FURTHER ORDE RED granting a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 7/25/2017. (REK)

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NOT FOR PUBLICATION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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Carlos Omar Heredia-Nieblas,
Movant/Defendant,

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v.

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No. CV-16-02615-PHX-SRB(BSB)
CR-15-00522-PHX-SRB
ORDER

United States of America,

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Respondent/Plaintiff.

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Movant, Carlos Omar Heredia-Nieblas, filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 on August 1, 2016. The United States

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filed its response in opposition on March 31, 2017 and Movant filed a reply on April 17,
2017.
The Magistrate Judge filed the Report and Recommendation on May 16, 2017

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recommending that Grounds One, Two and Three be denied. The Report and

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Recommendation recommended that Ground Four be granted and the Clerk of Court

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directed to vacate and reenter the judgment entered on Defendant 7, 2015 in CR15-00522

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to permit Defendant to file a notice of appeal and advise Defendant that he may seek the
appointment of counsel on appeal.

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In the Report and Recommendation, the Magistrate Judge advised the parties that
they had fourteen days from the date of service of a copy of the Report and

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Recommendation within which to file specific written objections with the Court. The
time to file such objections has expired and no objections to the Report and
Recommendation have been filed.

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The Court finds itself in agreement with the Report and Recommendation of the

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Magistrate Judge.

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IT IS ORDERED adopting the Report and Recommendation of the Magistrate
Judge as the Order of this Court.

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IT IS FURTHER ORDERED denying Grounds One, Two and Three of

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Movant’s Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal

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Custody pursuant to 28 U.S.C. § 2255.

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IT IS FURTHER GRANTING Ground Four of Movant’s Motion to Vacate, Set

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Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255.

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IT IS FURTHER ORDERED directing the Clerk of Court to vacate and reenter

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the judgment entered on December 7, 2015 in CR15-00522-PHX-SRB to permit
Defendant to file a notice of appeal.

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IT IS FURTHER ORDERED granting a Certificate of Appealability and leave
to proceed in forma pauperis on appeal because Movant has made a substantial showing

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of the denial of a constitutional right.

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///

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IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.

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Dated this 25th day of July, 2017.

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