Montiel-Guarda v. USA

Filing 12

ORDER - Adopting in whole the R&R prepared by Judge Boyle (Doc. 11 ) and denying as untimely the Motion to Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1 ) The Clerk of Court shall enter judgment and close this matter. IT IS FURT HER ORDERED denying a Certificate of Appealability because Defendant has made no substantial showing that reasonable jurists would find the District Courts assessment of the constitutional claims debatable or wrong. Signed by Judge John J Tuchi on 02/12/2018. (KAS)

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NOT FOR PUBLICATION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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Felipe Montiel-Guarda,
Petitioner,

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ORDER

v.

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No. CV-17-08083-PCT-JJT (JZB)

USA,

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Respondent.

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At issue is the Report and Recommendation (“R&R”) prepared in this matter by

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United States Magistrate Judge John Z. Boyle (Doc. 11) analyzing the pleadings and

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recommending that the Court deny as untimely Mr. Montiel-Guarda’s Motion to Correct

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his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The time to object to the R&R has

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passed and Movant has filed no objections. The Court thus may accept the R&R without

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further review per United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). It

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nonetheless chooses to review the R&R on the merits and, upon doing so, concludes the

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analysis therein is correct.

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The Ninth Circuit Court of Appeals dismissed Movant’s direct appeal, upon his

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motion, on August 31, 2015. From that date, Movant had one year, or until September 1,

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2016, to file his 2255 motion, absent any tolling. Movant has provided no basis for tolling

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the deadline, as Judge Boyle correctly found. Movant filed his Motion on May 1, 2017—

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eight months too late.

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IT IS ORDERED adopting in whole the R&R prepared by Judge Boyle (Doc. 11.)

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IT IS FURTHER ORDERED denying as untimely the Motion to Correct his

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Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Clerk of Court shall enter judgment

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and close this matter.

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IT IS FURTHER ORDERED denying a Certificate of Appealability because

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Defendant has made no substantial showing that reasonable jurists would find the District

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Court’s assessment of the constitutional claims debatable or wrong.

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Dated this 12th day of February, 2018.

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Honorable John J. Tuchi
United States District Judge

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