Cossio v. United States of America
Filing
40
OPINION AND ORDER accepting and adopting 33 Report and Recommendation; denying 1 Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence; denying 24 Petitioner's First Amended Petition Under 28 U.S.C. Section 2255; denying Certificate of Appealability and leave to appeal in forma pauperis. See Opinion and Order for details. The Clerk of the Court shall enter judgment accordingly and close the file. The Clerk is further directed to place a copy of the civil Judgment in the criminal file. Signed by Judge John E. Steele on 8/2/2013. (AAA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANCISCO COSSIO,
Petitioner,
vs.
Case No.
2:11-cv-471-FtM-29UAM
2:09-cr-90-FtM-29SPC
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by
a Person in Federal Custody (Doc. #1) filed on August 24, 2011,
asserting a single issue of ineffective assistance of counsel with
regard to filing a direct appeal.
Upon review, the Court referred
the matter to the Magistrate Judge to conduct a hearing and
appointed
the
petitioner.
Federal
Public
(Docs. #4, 5.)
Defender’s
Office
to
represent
The government filed a Response in
Opposition (Doc. #14) on May 7, 2012.
On July 18, 2012, with the permission of the Court, counsel
filed Petitioner’s First Amended Petition Under 28 U.S.C. § 2255
(Doc. #24) raising an additional issue of ineffective assistance of
counsel pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).
The
government filed a Response in Opposition (Doc. #27) on August 7,
2012,
essentially
adopting
its
previously
filed
Response
suggesting that the hearing would address both issues.
and
On
August
evidentiary
9,
hearing
2012,
the
Magistrate
and
heard
testimony
Judge
from
conducted
petitioner
an
and
petitioner’s counsel in the underlying criminal proceeding, and
argument from counsel.
(Doc. #31.)
On October 4, 2012, the
Magistrate Judge issued a Report and Recommendation (Doc. #33) that
petitioner should be denied relief on both issues.
filed Objections (Doc. #36) on November 18, 2012.
Petitioner
On February 21,
2013, the undersigned directed petitioner to file a supplemental
memorandum in light of Chaidez v. United States, 133 S. Ct. 1103
(2013), (Doc. #37), and petitioner did so on March 13, 2013, (Doc.
#38).
I.
On October 14, 2009, a federal grand jury in Fort Myers,
Florida returned a five-count Indictment (Cr. Doc. #53) charging in
Count One that Francisco Cossio (Cossio or petitioner) and codefendants knowingly and willfully conspired with each other, and
others known and unknown to the Grand Jury, to possess with intent
to
distribute
500
grams
or
more
of
a
containing a detectable amount of cocaine.
mixture
or
substance
Counts Two and Three
charged only petitioner with the knowing possession with intent to
distribute a quantity of a mixture or substance containing a
detectable amount of cocaine on various dates.
Count Four charged
petitioner and one co-defendant with the knowing possession with
intent
to
distribute
a
quantity
-2-
of
a
mixture
or
substance
containing a detectable amount of cocaine on September 8, 2009, and
Count Five charged petitioner and three co-defendants with the
knowing possession with intent to distribute 500 grams or more of
a mixture or substance containing a detectable amount of cocaine.
On February 8, 2010, petitioner pled guilty to Counts One,
Two, Three, Four, and Five of the Indictment pursuant to a written
Plea Agreement (Cr. Doc. #128).
May
24,
2010,
imprisonment
the
of
57
Court
months
(Cr. Docs. ## 138, 139, 140.)
sentenced
as
to
petitioner
each
to
count,
a
to
term
be
On
of
served
concurrently, and to be followed by a term of supervised release.
(Cr. Doc. # 166.)
#167.)
Judgment was filed on May 25, 2010.
(Cr. Doc.
No direct appeal was filed.
II.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).
to
which
objection
is
made.”
28
U.S.C.
§
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
-3-
Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th
Cong.,
§
2
(1976)).
The
district
judge
reviews
conclusions de novo, even in the absence of an objection.
legal
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
After independently reviewing the record, the Court adopts the
Report and Recommendation, as supplemented by Chaidez v. United
States, 133 S. Ct. 1103 (2013), which held that Padilla was not
retroactively applicable to final convictions.
Because Cossio’s
conviction became final prior to Chaidez, he cannot benefit from
its holding. Chapa v. United States, No. 11-13722, 2013 WL 1197104
(11th Cir. March 25, 2013).
Additionally, the Court agrees that
petitioner’s counsel did not provide ineffective assistance of
counsel in any manner now asserted by petitioner.
Petitioner’s
Objections are overruled.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #33) is ACCEPTED AND
ADOPTED as set forth above.
2.
Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody (Doc. #1)
is DENIED.
3. Petitioner’s First Amended Petition Under 28 U.S.C. § 2255
(Doc. #24) is DENIED.
-4-
4.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable
or
wrong,”
(2004)(citation
Tennard
omitted),
or
v.
that
Dretke,
“the
542
issues
U.S.
274,
presented
282
were
adequate to deserve encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)(citation omitted).
Petitioner
has not made the requisite showing in these circumstances.
Finally, because petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Fort Myers, Florida, this 2nd day of
August, 2013.
-5-
Copies:
Counsel of record
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