Valadez-Torres v. USA

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION in whole 11 Report and Recommendation and denying and dismissing with prejudice Petition (Doc. 1 ). Denying a certificate of Appealability and leave to proceed in forma pauperis on appeal because the dismissal of the motions is justified by a plain procedural bar and jurists of reason would not find the proceeding debatable. Signed by Judge John J Tuchi on 8/21/17. (DXD)

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NOT FOR PUBLICATION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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Juan Manuel Valadez-Torres,
Petitioner,

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ORDER

v.

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No. CV-16-08157-PCT-JJT (JZB)
No. CR-06-01068-PHX-JJT

USA,

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Respondent.

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At issue is the Report and Recommendation (“R&R”) (Doc. 11), submitted by

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United States Magistrate Judge John Z. Boyle on June 12, 2017, recommending that this

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Court deny and dismiss with prejudice Petitioner Juan Manuel Valadez-Torres’s Motion

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to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). When

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Petitioner instituted this action, he also filed a Motion to Vacate (Doc. 43) in his

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underlying criminal matter. The Court addresses both motions here. Petitioner has filed

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no Response to the R&R and the time for such response is now well-expired. The Court

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therefore is entitled to accept the R&R without further review. United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 9th Cir. (2003). The Court nonetheless has engaged in de

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novo review of the matter, and after such review, will adopt in the whole the R&R, and

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the reasoning set forth by Judge Boyle in support of it.

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Petitioner’s conviction and sentence became final in June 2007 because he chose

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not to file an appeal upon entry of judgment. His 2255 motion therefor was due no later

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than June 25, 2008, but was not filed until more than eight years after that—on July 8,

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2016. Petitioner has not stated, and the Court finds no grounds for, equitable tolling. His

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remaining claim, as stated in Ground Two of his Petition, for ineffective assistance of

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counsel, is untimely. The court therefore will dismiss the 2255 Petition. And because

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what remains of Petitioner’s Motion to Vacate in his criminal matter is the same issue,

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the Court will deny the motion there as well.

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IT IS ORDERED in matter CV-16-8157-PHX-JJT(JZB) adopting in whole the

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R&R prepared by Judge Boyle (Doc. 11), and denying and dismissing with prejudice the

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Petition (Doc. 1).

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IT IS FURTHER ORDERED in matter CR-06-1068-PHX-JJT denying
Defendant’s Motion to Vacate (Doc. 43). The matter shall remain closed.

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IT IS FURTHER ORDERED denying a certificate of Appealability and leave to

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proceed in forma pauperis on appeal because the dismissal of the motions is justified by a

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plain procedural bar and jurists of reason would not find the proceeding debatable..

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Dated this 21st day of August, 2017.

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Honorable John J. Tuchi
United States District Judge

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