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.

United States District Court
for the
Southern District of Florida
Ernesto Estupinan-Gonzalez,
Petitioner,
v.
United States of America,
Respondent.

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) Case No. 17-23614-Civ-Scola
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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