Rasco v. United States Of America

Filing 9

ORDER ADOPTING re 2 Report and Recommendations, denying Rasco's 2255 petition; Dismissing as Moot re 8 Motion to check status on pending motions, filed by Alfredo Felipe Rasco. Signed by Judge William T. Moore, Jr on 12/2/2015. (loh)

FILED
U.S. DISTRICT COURT
SAVANNAH DIV.
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIOI5DEC3 AM 10: 19
SAVANNAH DIVISION

CLER
ALFREDO FELIPE RASCO,

)

.OFGA.

Petitioner,
V

CASE NOS. CV414-171
CR4 08-100

.

UNITED STATES OF AMERICA,
Respondent.
ORDER

Before the Court is the Magistrate Judge's Report and
Recommendation (Doc.

369),1 to which objections have been filed

(Doc. 373; Doc. 374). For the following reasons, the report and
recommendation is ADOPTED as the Court's opinion in this case.
In his objections, Petitioner argues that the Court failed
to advise him that he was giving up his rights to a direct or
collateral appeal in violation of Fed. R. Crim. P. 11 (b) (1) (N).
(Doc. 373 at 10.) However, the Court did review the plea
agreement with the Petitioner and discussed the fact that
Petitioner was "going to forever lose [his] right to complain on
appeal about any action of the government, any government agent,
prosecutor, the Magistrate Judge, (his) own lawyer, this Court,
or anyone else as far as any complaint that [he) might have
about anything that [he said] they did or failed to do in [his)

1

The Court is citing only to the criminal docket.

case." (Id. at 20-21.) Petitioner responded that he understood
this consequence of pleading guilty. (Id.) Therefore, the Court
specifically questioned Petitioner concerning the appeal waiver
and the record reflects that Petitioner understood the full
significance of that waiver. See United States v. Bushert, 997
F.2d 1343, 1351 (11th Cir. 1993) . As a result, the waiver is
effective and Petitioner is not entitled to relief. 2
Petitioner also contends that an October 14,

2014

Memorandum for All Federal Prosecutors from the Deputy Attorney
General grants Petitioner the right to file a collateral appeal
based on ineffective assistance of counsel pertaining to issues
other than the validity of the plea itself. (Doc. 7.) See
Memorandum from James M. Cole, Deputy Attorney General, to All
Federal Prosecutors (Oct. 14, 2014), available at
http://www.justice.gov/file/ 70111/download. The memorandum
allows federal prosecutors to decline to enforce a previously
executed waiver "when defense counsel rendered ineffective
assistance resulting in prejudice or when the defendant's

2

Even if Petitioner is right and the Court technically violated
Rule 11 by failing to directly explain that Petitioner was
giving up his rights to collaterally appeal, this was harmless
error. See United States v. Jackson, 398 F. App'x 451, 452-453
(11th Cir. 2010) (upholding appeal waiver where defendant failed
to show that but for the inaccurate explanation of waiver,
defendant would not have entered plea). Here, Petitioner has
failed to show that he would not have entered the plea had the
Court more fully explained the plea waiver.
2

ineffective assistance claim raises a serious debatable issue
that a court should resolve." Id.
However, the memorandum does not affect the validity of
Petitioner's previous knowing and voluntary waiver. See, e.g.,
Demello v. United States, - F. App'x -, 2015 WL 4663934, at *3
(11th Cir. Aug. 7, 2015) (finding collateral-attack waiver
enforceable where knowingly and voluntarily waived). As part of
Petitioner's entering a plea of guilty, he stated that he was
pleading guilty freely and voluntarily and that his attorney had
not tried to force or push him into pleading guilty. (Doc 336 at
27-28) Petitioner did not raise any objections. For these
reasons, and after a careful de novo review of the record, the
Court finds Petitioner's objections without merit. Accordingly,
the report and recommendation is ADOPTED as the Court's opinion.
As a result, Petitioners 28 U.S.C. § 2255 Petition is hereby
DENIED.

All other pending motions are DISMISSED AS MOOT.

Clerk of Court is DIRECTED to close this case.
SO ORDERED this

.....2.

day of December 2015.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

3

The