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)

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