Gonzales-Castellanos v. USA

Filing 3

Copy of MEMORANDUM OPINION & ORDER entered in 5:89-cr-5: (1) Magistrate Judge's Proposed Findings of Fact and Recommendations ACCEPTED and ADOPTED; (2) USA's Motion to Dismiss GRANTED; (3) Gonzalez-Castellanos' Motion to Vacate is DENIED. Signed by Judge Joseph M. Hood on 12/4/2009.(STB)cc: COR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON UNITED STATES OF AMERICA, Plaintiff, v. JUAN MIGUEL GONZALESCASTELLANOS Defendant. ** ** ) ) ) Criminal Action No. 5:89-5-JMH ) (Civil Action No. 07-364-JMH) ) (Civil Action No. 07-7003-JMH) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ** ** **

This matter is before the Court on the Proposed Findings of Fact and Recommendations of Magistrate Judge James B. Todd [Record No.328]. Said action was referred to the magistrate for the purpose of reviewing the merit of Gonzalez-Castellanos' Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 320, 321], in which he seeks to raise claims recognized in Bailey v. United States, 516 U.S. 137 (1995). The United States of America has made a Motion to

Dismiss Gonzalez-Castellanos' motion on the grounds that it is now barred by the applicable one year statute of limitations, found in 28 U.S.C. § 2255 [Record No. 324]. Gonzalez-Castellanos filed no

objections, and the Magistrate Judge filed Proposed Findings of Fact and Recommendations on June 18, 2009 [Record No. 328]. Petitioner has not filed objections to the Report and

Recommendation, and the deadline for filing objections has passed. Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge."

28 U.S.C. § 636.

However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a

magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently, this

Court adopts the reasoning set forth in the Report and Recommendation as its own. Accordingly, IT IS ORDERED: (1) that the Magistrate Judge's Proposed Findings of Fact and

Recommendations [Record No. 328] shall be, and the same hereby is, ACCEPTED and ADOPTED; (2) that the United States' Motion to Dismiss [Record No. 324] shall be, and the same hereby is, GRANTED; and (3) that Gonzalez-Castellanos' Motion to Vacate, Set Aside, or

Correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 320, 321] shall be, and the same hereby is, DENIED. This is the 4th day of December, 2009.