Pena v. United States Of America

Filing 11

ORDER granting 10 Motion to Vacate the judgment, dkt. no. 10, and thus VACATES its November 7, 2016 Order and Judgment, dkt. nos. 7 & 8, it nevertheless DENIES Movant's § 2255 motion. Dkt. No. 1. It also adopts and affirms the R&R's conclusion that no Certificate of Appealability, much less leave to appeal in forma pauperis, is warranted. Signed by Judge Lisa G. Wood on 5/15/17. (jlm)

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tlSmteb States! IBtie(trtct Court ^ontliem Biotritt ot (deorgta ^oiiantiali BUitOton JUAN CARLOS PENA, Movant, CV416-249 V. CR413-004 UNITED STATES OF AMERICA, Respondent. ORDER After pleading guilty to sex trafficking charges, 766, Juan Carlos No. 1. Upon Pena moved for preliminary 28 U.S.C. § 2255 under § 2255 review dkt. relief. Rule no. Dkt. 4, the Magistrate Judge recommended that his motion be denied as both waived under the terms of his plea agreement and as Dkt. No. 3. Pena requested, and received, to file his objections by November 11, untimely. an extension of time 2016. Dkt. Nos. The extension was docketed on the criminal docket only, 5 & 6. however, and for that reason was overlooked when the undersigned entered an Order Adopting Dkt. Nos. 7 Having received signature-dated A0 72A unopposed R&R on November 7, 2016. Judgment prior See & 8. expiration of his (Rev. 8/82) an a copy of the objections period, objections along Movant with a sent letter in his to the timely informing the Court an error had been made. Dkt. No. 9 (signed November 10, 2016, notifying the Court that his objections period had not yet lapsed and asking that his objections be considered). On February 28, 2017, Pena filed his motion to vacate the judgment, contending that the Court incorrectly entered judgment without reviewing his objections and failed to take corrective action. Dkt. No. 10 at 2 (''[As premature rush to judgment, to have his Objections a] result of this Court's this Court denied Movant his right duly considered and addressed by this R. Civ. Court upon the merits." (citing 28 U.S.C. § 636(b)(1)). Movant is correct. P. 72(b)(2) Objection. He Dkt. No. his reconsideration motion, adopting the Objection, focusing R&R, dkt. on dkt. no. the did 9. 10. id., nos. timely a Fed. The Court therefore grants vacates 7 file & its Order and Judgment 8, and now reaches his Movant objects that the Court erred by terms of his plea agreement and its appeal waiver, because his plea was involuntarily and unknowingly made and is he clear "actually testimony innocent." at his contradicts his contentions. Rule Dkt. 11 There, No. 9 plea at 2-3. Movant's hearing, however, he swore under oath that no one had pressured or coerced his plea, he had fully reviewed the plea agreement understood the CR413-004, dkt. and its terms no. 634 and terms with conditions his of the attorney, and he agreement. See (Rule 11 plea hearing transcript) at 18 & 25-28. Pena admitted the factual basis of the conviction and testified that he wished to plead guilty because he ""is guilty." Id. at 20-21, 28. He further swore that he fully understood the rights he was giving up by pleading guilty, including his direct and collateral appeal rights. 24-25, Id. at 5-6, 10-13, 15-18, 21, 22, 29-30. Based on his unambiguous and clear testimony, the Court found that Pena was ''fully aware of what he wishes to do and the significance of this the decisions he's proceeding" and "fully capable of making made. He influenced by any coercion, meaning of them." is mature enough not to and he understands the charges, CR413-004, dkt. no. 634 at 30, 32. be the The Court further concluded that Pena "has the intelligence and competence to make his decision and matter of his own free has offered his choice, plea of guilty as a and he has not been forced into doing so," and accepted the plea. Id. at 32, 39. Faced with his previous sworn affirmation of understanding in an otherwise thorough and wide-ranging plea colloquy, present at a unsworn, time self-serving when Winthrop-Redin v. 2014), the Movant cannot hearing, Court that now he has testimony United States, finds escape to 767 Movant's his the incentive every to plea sworn his plea was both F.3d 1210, opposite effect embellish, 1216 testimony testimony and his at see (11th Cir. dispositive. the knowing and voluntary, Rule 11 only to now claim that i t was neither. U.S. 63, strong 74 (1977) See Blackledqe v. (''Solemn declarations presumption of veracity."); Rule 11 is not 'insurmountable, there 431 in open court carry a accord Gonzalez-Mercado, 808 F.2d 796, 800 n.8 Allison, United States (11th Cir. 1987) is a strong v. ("While presumption that the statements made during the colloquy are true."); United States V. ("[I]f Stitzer, the detailed, Rule 785 11 F.2d 1506, 1514 plea-taking n.4 (11th procedure is Cir. 1986) careful and the defendant will not later be heard to contend that he swore falsely."). Hence, merits,^ Movant's and his continues to do unintelligent-plea plea-agreement claim collateral its work to bar his § fails on review 2255 motion. the waiver Dkt. No. 3 (R&R recommending dismissal of the motion, inter alia, as waived by plea agreement); see also Taylor v. United States, No. CV615026, 2016 that WL waivers 742118, will at be specifically questioned ^ *3 (S.D. enforced the Ga. if Feb. "(1) defendant 24, the about His claim is also procedurally barred. 2016) (stating district the court waiver during Movant could have, but did not, raise his plea claim on direct appeal. See Bousley V. United States, 523 U.S. 614, 621 (1998) ("[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review."). A movant may not use his collateral attack as "a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 1190, 1196 (11th Cir. (11th Cir. 2004); 2011). McKay v. United States, 657 F.3d the plea colloquy, defendant waiver" or otherwise (quotation (2) the record clearly shows understood marks the omitted) full that the of the significance (citing United States Benitez-Capata, 131 F.3d 1444, 1446 (11th Cir. 1997))). v. Nothing in his Objection commends a contrary ruling here. Accordingly, while the vacate the judgment, dkt. no. 7, 2016 Order and Judgment, DENIES Movant's § 2255 motion. affirms the R&R's Court GRANTS Movant's motion 10, and thus VACATES its November dkt. nos. Dkt. No. conclusion that 7 & 8, 1. it nevertheless It also adopts and no Certificate Appealability, much less leave to appeal in forma pauperis, warranted. SO ORDERED, this 15 to day of )BEY WOOD, DISTRICT JUDGE JNIT^ STATES DISTRICT COURT SOOTt^RN DISTRICT OF GEORGIA of is

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