Cebreros-Sanchez v. USA

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION granting 31 Motion for Ruling and adopting 28 Report and Recommendation. the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1 ) is denied and Petitioner's request for an evidentiary hearing is denied. Any request for a Certificate of Appealability and leave to proceed on appeal in forma pauperis is denied because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 9/24/24. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Ramon Cebreros-Sanchez,
Petitioner,

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No. CV-21-01799-PHX-DJH
No. CR-16-01202-PHX-DJH-1
ORDER

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v.

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United States of America,

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Respondent.

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Before the Court is Petitioner Jose Ramon Cebreros-Sanchez’s 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 “§ 2255 Motion”) (Doc. 1) and the January 23, 2023, Report and Recommendation

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(“R&R”) issued by Magistrate Judge Eileen S. Willett (Doc. 28). In her R&R, Judge

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Willett recommends the § 2255 Motion be denied without an evidentiary hearing. (Id. at

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20). She also recommends that a Certificate of Appealability and leave to proceed in

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forma pauperis be denied because Petitioner has not made a substantial showing of the

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denial of a constitutional right. (Id.)

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On February 21, 2023, Petitioner filed a one-page objection to the R&R (Doc. 29)

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in which he asserts that the R&R did not address one of the six grounds he raised in his

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§ 2255 Motion. Specifically, Petitioner says the R&R failed to address his argument that

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his counsel’s performance was constitutionally deficient for failing to raise the argument

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that the jury had not found drug quantities that impacted the statutory maximum and

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mandatory minimum sentence that he received. (Id.) The Government filed a Response

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to Petitioner’s objection (Doc. 30) that points out that the R&R addresses Petitioner’s

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argument at length on pages 14–16.

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The Court has reviewed the comprehensive R&R and agrees with the Government.

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The R&R not only addresses Petitioner’s § 2255 argument, it makes a sound

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recommendation as to why Petitioner’s trial and appellate counsel were not deficient in

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failing to challenge the sentence on appeal. (See Doc. 28 at 15–16 (finding that the

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Court’s sentence comported with the Sixth Amendment because “the jury in this case

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found beyond a reasonable doubt that Count 1 involved more than 500 grams of

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methamphetamine” and “the Court did not impose sentences on Counts 1 and 2 that

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exceeded the statutory maximum”)). The Court will, therefore, overrule Petitioner’s

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objection, accept the R&R, and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A

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judge of the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion for Ruling (Doc. 31) is granted as

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stated herein. Magistrate Judge Willett’s R&R (Doc. 28) is accepted and adopted as the

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Order of this Court.

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IT IS FURTHER ORDERED that the Motion Under 28 U.S.C. § 2255 to

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

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and Petitioner’s request for an evidentiary hearing is denied.

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Certificate of Appealability and leave to proceed on appeal in forma pauperis is denied

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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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Any request for a

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 24th day of September, 2024.

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Honorable Diane J. Humetewa
United States District Judge

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