United States District Court, S.D. Georgia, Savannah Division
GODBEY WOOD, DISTRICT JUDGE
pleading guilty to sex trafficking charges, dkt. no. 766,
Juan Carlos Pena moved for 28 U.S.C. § 2255 relief. Dkt.
No. 1. Upon preliminary review under § 2255 Rule 4, the
Magistrate Judge recommended that his motion be denied as
both waived under the terms of his plea agreement and as
untimely. Dkt. No. 3. Pena requested, and received, an
extension of time to file his objections by November 11,
2016. Dkt. Nos. 5 & 6. The extension was docketed on the
criminal docket only, however, and for that reason was
overlooked when the undersigned entered an Order Adopting an
unopposed R&R on November 7, 2016. See Dkt. Nos.
7 & 8.
received a copy of the Judgment prior to the expiration of
his objections period, Movant sent in his timely
signature-dated objections along with a letter 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).
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 a] result of
this Court's premature rush to judgment, this Court
denied Movant his right to have his Objections duly
considered and addressed by this Court upon the merits."
(citing 28 U.S.C. § 636(b)(1)).
is correct. He did timely file a Fed.R.Civ.P.
72(b)(2) Objection. Dkt. No. 10. The Court therefore grants
his reconsideration motion, id., vacates its Order
and Judgment adopting the R&R, dkt. nos. 7 & 8, and
now reaches his Objection, dkt. no. 9. Movant objects that
the Court erred by focusing on the terms of his plea
agreement and its appeal waiver, because his plea was
involuntarily and unknowingly made and he is "actually
innocent." Dkt. No. 9 at 2-3. Movant's clear
testimony at his Rule 11 plea hearing, however, contradicts
his contentions. There, he swore under oath that no one had
pressured or coerced his plea, he had fully reviewed the plea
agreement and its terms with his attorney, and he understood
the terms and conditions of the agreement. See
CR413-004, dkt. no. 634 (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. Id. at 5-6, 10-13, 15-18,
21, 22, 24-25, 29-30.
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 proceeding" and "fully capable
of making the decisions he's made. He is mature enough
not to be influenced by any coercion, and he understands the
charges, the meaning of them." CR413-004, dkt. no. 634
at 30, 32. The Court further concluded that Pena "has
the intelligence and competence to make his decision and has
offered his plea of guilty as a matter of his own free
choice, and he has not been forced into doing so, " and
accepted the plea. Id. at 32, 39.
with his previous sworn affirmation of understanding in an
otherwise thorough and wide-ranging plea colloquy, and his
present unsworn, self-serving testimony to the opposite
effect at a time when he has every incentive to embellish,
see Winthrop-Redin v. United States, 767 F.3d 1210,
1216 (11th Cir. 2014), the Court finds Movant's plea
testimony dispositive. Movant cannot now escape his sworn
testimony at the Rule 11 hearing, that his plea was both
knowing and voluntary, only to now claim that it was neither.
See Blackledqe v. Allison, 431 U.S. 63, 74 (1977)
("Solemn declarations in open court carry a strong
presumption of veracity."); accord United States v.
Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987)
("While Rule 11 is not -insurmountable, there is a
strong presumption that the statements made during the
colloquy are true."); United States v. Stitzer,
785 F.2d 1506, 1514 n.4 (11th Cir. 1986) ("[I]f the Rule
11 plea-taking procedure is careful and detailed, the
defendant will not later be heard to contend that he swore
Movant's unintelligent-plea claim fails on the merits,
his plea-agreement collateral review waiver continues to do
its work to bar his § 2255 motion. Dkt. No. 3 (R&R
recommending dismissal of the motion, inter alia, as
waived by plea agreement); see also Taylor v. United
States, No. CV615-026, 2016 WL 742118, at *3 (S.D. Ga.
Feb. 24, 2016) (stating that waivers will be enforced if
"(1) the district court specifically questioned the
defendant about the waiver during the plea colloquy, or (2)
the record clearly shows that the defendant otherwise
understood the full significance of the waiver''
(quotation marks omitted) (citing United States v.
Benitez-Capata, 131 F.3d 1444, 1446 (11th Cir. 1997))).
Nothing in his Objection commends a contrary ruling here.
while the Court GRANTS Movant's 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.
 His claim is also procedurally barred.
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, ...