Andrade-Casales v. United States of America

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION 11 of the Magistrate Judge; adopted in full, including the denial of a Certificate of Appealability. That the Motion to Vacate, Set Aside or CorrectSentence is dismissed with prejudice as to Ground One and denied as to Ground Two. Signed by Judge Earl H Carroll on 4/8/11. (DMT)

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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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vs.

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Ruben Andrade-Casales,
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Defendant/Movant.
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No. CV 09-8214-PCT-EHC (JRI)
No. CR 06-0346-PCT-EHC
ORDER

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On November 30, 2009, Movant filed a Motion to Vacate, Set Aside or Correct
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Sentence under 28 U.S.C. § 2255. The United States has filed a Response. The matter was
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referred to Magistrate Judge Jay R. Irwin who filed a Report and Recommendation on
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February 17, 2011 recommending that the Motion be dismissed with prejudice as to Ground
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One and denied as to Ground Two (Doc. 11 - CV 09-8214).
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The district court reviews de novo the portions of the Magistrate Judge's Report and
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Recommendation to which there is a filed objection. 28 U.S.C. § 636(b)(1)(C)("a judge of
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the court shall make a de novo determination of those portions of the report, ..., to which
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objection is made"); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
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2003). The district court is not required to review any issue that is not the subject of an
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objection. Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003), citing Thomas v.
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Arn, 474 U.S. 140, 149 (1985). Movant has not filed an objection to the Report and
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Recommendation within the time allowed.
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Moreover, it appears that the Motion may be subject to dismissal as moot. In the

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underlying criminal case (CR 06-346-PCT-EHC), Movant was convicted of illegal re-entry

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after deportation, 8 U.S.C. § 1326(a) (Doc. 43). The indictment charged that Movant entered

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and was found in the United States on or about February 14, 2006 after having been

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previously denied admission, excluded, deported, and removed from the United States at or

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near Calexico, California on or about October 29, 1992, and not having obtained the express

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consent of the Secretary of the Department of Homeland Security to reapply for admission

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(Doc. 10). Information in the underlying criminal case shows that Movant had been

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previously deported from the United States subsequent to having been convicted of an

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aggravated felony or serious criminal offense (Doc. 30-1). On March 14, 2011, Movant

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filed a change of address notice in the instant civil case (CV 09-8214) showing his present

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address as “Apartado Postal No. 7, cd. Lerdo, Dgo 35150". It appears that Movant has been

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released from custody and is presently in the Mexican state of Durango (Doc. 12). Even if

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his present § 2255 motion is successful, he would still be unable to legally enter the country

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because of his past felony convictions. See Yitchak v. United States, 2007 WL 3254115 *2

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(N.D.N.Y. Nov. 2, 2007)(No. 1:05-CV-1388(GLS)).

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The Report and Recommendation will be adopted as the Order of the Court.

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Accordingly,

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IT IS ORDERED that the Report and Recommendation of the Magistrate Judge

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(Doc. 11 - CV 09-8214-PCT-EHC (JRI)) is adopted in full, including the denial of a

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Certificate of Appealability.

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IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct
Sentence is dismissed with prejudice as to Ground One and denied as to Ground Two.
DATED this 8th day of April, 2011.

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