Benitez v. United States of America

Filing 15

OPINION AND ORDER adopting and specifically incorporating 14 Report and Recommendations; dismissing in part and denying in part 1 Motion to vacate, set aside, or correct sentence (2255). The Motion is dismissed as to the first two issues and is denied as to the claim of ineffective assistance of counsel. The Clerk shall enter judgment accordingly, file a copy of the judgment in the associated criminal file (Case No. 2:96-cr-14), and close the file. Signed by Judge John E. Steele on 12/1/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION PETER BENITEZ, a/k/a Pedro Juan Figueroa, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ___________________________________ OPINION AND ORDER This matter comes before the Court on petitioner Peter Case No. Case No. 2:08-cv-956-FtM-99DNF 2:96-cr-14-FtM-99DNF

Benitez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #331)1 filed on December 22, 2008. The United States filed

its Response in Opposition to Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 on February 6, 2009 (Cv. Doc. #6). In an Opinion and Order (Cv. Doc. #7) filed on August 13, 2009, the Court found that two of the three issues raised by petitioner were procedurally defaulted. The Court took the

petition under advisement and referred the third issue to the magistrate judge. Magistrate Judge Douglas N. Frazier conducted an

The Court will make references to the dockets in the instant action and in the related criminal case throughout this opinion. The Court will refer to the docket of the civil habeas case as "Cv. Doc.", and will refer to the underlying criminal case as "Cr. Doc."

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evidentiary hearing and has filed a Report and Recommendation (Cv. Doc. #14) recommending that the Court find that defense counsel did not provide ineffective assistance of counsel in not filing an appeal from the sentence upon revocation of supervised release. No objection has been filed, and the time to do so has expired. The Court has read the transcript of the evidentiary hearing (Cv. Doc. #12) and has reviewed the court file in both the underlying criminal case and the habeas case. The Court fully

agrees with the findings of fact and conclusions of law made by the magistrate judge. Accordingly, the Court will adopt the Report and Recommendation, and will dismiss in part and deny in part the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by Person in Federal Custody (Cv. Doc. #1). Accordingly, it is now ORDERED: 1. Doc. #14) The Magistrate Judge's Report and Recommendation (Cv. is accepted and adopted, and it is specifically

incorporated into this Opinion and Order. 2. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, and to Correct, Sentence By a Person in Federal Custody (Cv. Doc. #1) is DISMISSED as to the first two issues and is DENIED as to the claim of ineffective assistance of counsel.

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The Clerk of the Court shall enter judgment accordingly The Clerk shall place of copy of the

and close the civil file.

civil Judgment in the criminal file. DONE AND ORDERED at Fort Myers, Florida, this December, 2009. 1st day of

Copies: U.S. Magistrate Judge Clerk of Court Counsel of record

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