Estupinan-Gonzalez v. United States of America

Filing 9

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS for 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Ernesto Estupinan-Gonzalez ; Adopting 7 Report and Recommendations. Certificate of Appealability: DENIED. Closing Case. Signed by Judge Robert N. Scola, Jr on 11/27/2017. (kpe) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

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United States District Court for the Southern District of Florida Ernesto Estupinan-Gonzalez, Petitioner, v. United States of America, Respondent. ) ) ) ) Case No. 17-23614-Civ-Scola ) ) ) Order Adopting Magistrate Judge’s Report And Recommendation This case was referred to United States Magistrate Judge Patrick A. White, consistent with Administrative Order 2003-19 of this Court, for a ruling on all pre-trial, nondispositive matters and for a report and recommendation on any dispositive matters. On October 30, 2017, Judge White issued a report, recommending that Petitioner Ernesto Estupinan-Gonzalez’s petition be denied. (Report of Magistrate, ECF No. 7.) Estupinan-Gonzalez has filed objections (Pet’r’s Objs. ECF No. 8). Having reviewed de novo those portions of Judge White’s report to which Estupinan-Gonzalez properly objected1 and having reviewed the remaining parts for clear error, the Court adopts the report and recommendation in its entirety. In his petition, Estupinan-Gonzalez claims that he was denied effective assistance of counsel with respect to counsel’s failure to: (1) request a downward sentencing departure based on United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994); (2) raise certain factual issues; and (3) advise him that he had a right to pursue an appeal of his case. Estupinan-Gonzalez also argues that the North Carolina facility in which he is confined is violating the Second Chance Act and his right to bail. As determined by Judge White, EstupinanGonzalez fails to establish either deficient performance or prejudice to support his claim that he was denied effective assistance of counsel. Further, as also found by Judge White, Estupinan-Gonzalez’s claim regarding the Second Chance Act, which the Court construes as a motion brought under 28 U.S.C. §§ 2241–43, must be raised in the United States District Court in the District of North Carolina—the district in which Estupinan-Gonzalez is presently confined. The Court has disregarded those portions of Estupinan-Gonzalez’s “objections” which are comprised solely of obscenities and ad hominem attacks against the judges and lawyers of this Court. 1 In sum, the Court has considered Judge White’s report, EstupinanGonzalez’s objections, the record, and the relevant legal authorities. The Court finds Judge White’s report cogent and compelling. The Court thus affirms and adopts Judge White’s report and recommendation (ECF No. 7). The Court dismisses the petition for writ of habeas corpus (ECF No. 1). The Court does not issue a certificate of appealability. Finally, the Court directs the Clerk to close this case. Done and Ordered at Miami, Florida, on November 27, 2017. ___________________________________ Robert N. Scola, Jr. United States District Judge

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