Olivos v. United States of America

Filing 6

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) and this case is DISMISSED with prejudice. The Clerk of the Court shall enter judgment accordingly and is directed to close this case. The Clerk of the Court is directed to fi le a copy of this Order in criminal case number 6:12-cr-288-Orl-31KRS and to terminate the motion (Criminal Case, Doc. 105) pending in that case. This Court should grant an application for certificate of appealability only if the Petitioner makes &q uot;a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case. Signed by Judge Gregory A. Presnell on 5/23/2017. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JAMES OLIVOS,
Petitioner,
v.

Case No: 6:16-cv-5-Orl-31KRS
(6:12-cr-288-Orl-31KRS)

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
THIS CAUSE is before the Court on Petitioner James Olivos’ Motion to Vacate, Set Aside,
or Correct Sentence (“Motion to Vacate,” Doc. 1) pursuant to 28 U.S.C. § 2255. Respondent filed
a Response to the Motion to Vacate (“Response,” Doc. 4) in compliance with this Court’s
instruction. Petitioner was provided an opportunity to file a Reply to the Response but did not do
so.
Petitioner asserts three grounds in his Motion to Vacate.1 For the following reasons, the
Motion to Vacate will be denied.
I. PROCEDURAL HISTORY
A grand jury charged Petitioner by Indictment with bank fraud (Counts One through
Eleven) in violation of 18 U.S.C. § 1344, money laundering (Counts Twelve through Fourteen) in
violation of 18 U.S.C. § 1957, and fraud and false statements (Counts Fifteen through Eighteen)

1

The Court has identified three grounds raised by Petitioner in his Memorandum in
Support of the Motion to Vacate. (Doc. 2).

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in violation of 26 U.S.C. § 7206(1). (Criminal Case No. 6:12-cr-288-Orl-31KRS, Doc. 1).2
Petitioner entered a plea of guilty to Counts Three, Five, Seven, Nine, Eleven, Twelve, and
Fourteen pursuant to a Plea Agreement before Magistrate Judge Karla R. Spaulding. (Criminal
Case, Doc. 41). Magistrate Judge Spaulding filed a Report and Recommendation, recommending
that the plea be accepted and that Petitioner be adjudicated guilty of Counts Three, Five, Seven,
Nine, Eleven, Twelve, and Fourteen. (Criminal Case, Doc. 46). The Court accepted the plea and
adjudicated Petitioner guilty of Counts Three, Five, Seven, Nine, Eleven, Twelve, and Fourteen.
(Criminal Case, Doc. 50). The Court sentenced Petitioner to concurrent sixty-month terms of
imprisonment for all counts. (Criminal Case, Doc. 57). The Government dismissed the remaining
counts. (Id.). Petitioner appealed, and the Eleventh Circuit Court of Appeals affirmed the
convictions and sentences. (Criminal Case, Doc. 103).
II. LEGAL STANDARD
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel’s performance was
deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient
performance prejudiced the defense. Id. at 687-88. The prejudice requirement of the Strickland
inquiry is modified when the claim is a challenge to a guilty plea based on ineffective assistance.
See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To satisfy the prejudice requirement in such
claims, “the defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

2

Criminal Case No. 6:12-cr-288-Orl-31KRS will be referred to as “Criminal Case.”

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