Garcia-Navarro v. United States of America
ORDER granting 12 Motion to Dismiss for Failure to State a Claim; adopting 14 Report and Recommendation; overruling 16 Objection to Report and Recommendation; dismissing 1 Motion to vacate, set aside, or correct sentence under 28 U.S.C. §2255. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 5/15/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT
AND DISMISSING MOTION
Movant, Rosendo Garcia-Navarro, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. The matter was
assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate
Judge Duffy recommends that Garcia-Navarro’s motion be dismissed because
his claims are time-barred and meritless. Docket 14.
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
After de novo review, the court agrees with Magistrate Judge Duffy. To
the extent Garcia-Navarro raises claims concerning his original sentence, these
claims are time-barred and equitable tolling does not apply. To the extent
Garcia-Navarro raises claims concerning the recalculation of his sentence after
his sentence reduction, these claims are denied because there was no mistake
made: a two point enhancement was applied at sentencing. See USA v.
Chantharath et al, 4:10-cr-40004-KES-11 Docket 924 at 31. Finally, GarciaNavarro’s objections merely restate the arguments he raised in his petition and
“A district court may deny an evidentiary hearing where (1) accepting the
petitioner's allegations as true, the petitioner is not entitled to relief, or (2) ‘the
allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). Here, an
evidentiary hearing is not required because the record contains the applicable
dates of Garcia-Navarro’s filings and shows that the district court applied the
two point enhancement.
Before denial of a § 2255 motion may be appealed, a movant must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
finds that Garcia-Navarro fails to make a substantial showing that the district
court’s assessments of his claims are debatable or wrong. Consequently, a
certificate of appealability is not issued.
Thus, it is ORDERED
1. Garcia-Navarro’s objections to the report and recommendation
(Docket 16) are overruled.
2. The report and recommendation (Docket 14) is adopted in full.
3. The Government’s motion to dismiss (Docket 12) is granted.
4. Garcia-Navarro’s motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (Docket 1) is dismissed.
5. A certificate of appealability is not issued.
Dated May 15, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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