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Pineda-Garcia v. United States

United States District Court, N.D. Georgia, Rome Division

May 19, 2017

FABIAN PINEDA-GARCIA,
v.
UNITED STATES OF AMERICA. Criminal Action No.4:14-CR-028-02-HLM-WEJ

          ORDER

         This case is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, which Petitioner filed under 28 U.S.C.A. § 2255 ("§ 2255 Motion") [58], on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [81], and on the Government's Objections to the Final Report and Recommendation [85].

         I. Standard of Review for a Report and Recommendation

         28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem. Inc.. 208 F.App'x 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ. 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy. 894 F.2d 1307, 1315 (11th Cir. 1990): LoConte v. Dugger. 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort, 208 F.App'x at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel. 164 F.App'x 958, 961 (11th Cir. 2006); United States v. Warren. 687 F.2d 347, 347 (11th Cir. 1982).

         II. Background

         On June 17, 2014, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Petitioner and a co-defendant. (Indictment (Docket Entry No. 1).) Count one of the indictment charged Petitioner and his co-defendant with conspiring to possess within intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). (Id at 1.) Count ten of the indictment charged Petitioner and his co-defendant with possessing with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 18 U.S.C. § 1960(a), 31 U.S.C. § 5330, and 18 U.S.C. § 2. (id, at 4.)

         On November 19, 2014, Petitioner pleaded guilty to count one of the indictment. (Minute Entry (Docket Entry No. 29); Plea Agreement (Docket Entry No. 30).) On March 3, 2015, the Court sentenced Petitioner to 120 months of imprisonment, to be followed by five years of supervised release. (Minute Entry (Docket Entry No. 37); Judgment & Commitment (Docket Entry No. 39).) Petitioner did not file a direct appeal. (See generally Docket.)

         On May 23, 2016, the Clerk received Petitioner's § 2255 Motion, which Petitioner had signed and mailed on May 18, 2016. (§ 2255 Mot. (Docket Entry No. 58).) In his § 2255 Motion, Petitioner argued that his counsel failed to file a notice of appeal even though Petitioner requested that his counsel file a notice of appeal. (See generally id)

         Judge Johnson appointed counsel to represent Petitioner. (Order of Sept. 9, 2016 (Docket Entry No. 65).) On November 18, 2016, Judge Johnson held an evidentiary hearing on Petitioner's § 2255 Motion. (Minute Entry (Docket Entry No. 77); Evidentiary Hearing Transcript (Docket Entry No. 78).)

         On March 24, 2017, Judge Johnson issued his Final Report and Recommendation. (Final Report & Recommendation (Docket Entry No. 81).) Judge Johnson recommended that the Court grant Petitioner's § 2255 Motion to the limited extent that Petitioner's sentence be vacated and reimposed so that Petitioner may take an out-of-time appeal. (id) The Court has reviewed the transcript of the evidentiary hearing, and agrees with Judge Johnson's summary of the testimony at that hearing:

At the evidentiary hearing on his § 2255 motion, [Petitioner], a Spanish speaker not fluent in English, testified that he gave the specific instruction "apele" to his attorney at the conclusion of the sentencing hearing. [Petitioner's] attorney did not contradict this testimony; he stated rather that he did not hear this request and never spoke again with [Petitioner] after the sentencing hearing. [Petitioner's] counsel sought to speak to [Petitioner] in lock-up afterthe sentencing hearing, but by the time he got there, the Marshals had transported [Petitioner] to the local jail where he was being held. Within a few days of the sentencing hearing, a family member contacted [Petitioner's] counsel, but did not ask him to file an appeal.

(Id. at 2 (citations omitted).)[1]

         The Government filed Objections to the Final Report and Recommendation. (Objs. (Docket Entry No. 85).) The time period in which Petitioner could respond to the Government's Objections has expired, and the Court concludes that the matter is ripe for resolution.

         III. Discussion

         As an initial matter, the Court agrees with Judge Johnson's determination that Petitioner's § 2255 Motion is timely, even though Petitioner filed the Motion more than one year after his conviction became final. (Final Report & Recommendation at 4-7.) Here, the relevant date for triggering the one-year limitations period is as set forth in § 2255(f)(4): "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). The Court agrees with Judge ...


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