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Vega-Cervantes v. United States

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

February 20, 2019

JOSE VEGA-CERVANTES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JANET F. KING MAGISTRATE JUDGE.

         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered under the above criminal docket number. The matter is before the Court on Movant's § 2255 motion and motion to date back [153], Respondent's response [158], and Movant's reply [159]. For the reasons discussed below, Movant's motion to vacate and motion to date back are due to be denied.

         I. Discussion

         A. Background

         Movant pleaded guilty to conspiracy to possess with intent to distribute methamphetamine, and, by judgment entered on February 4, 2016, the Court imposed a sentence of ninety-two months. (J., ECF No. 119). On December 20, 2016, the Eleventh Circuit Court of Appeals affirmed the judgment against Movant. (USCA Op., ECF No. 144; J. USCA, ECF No. 145). The record does not indicate that Movant sought further direct review in the United States Supreme Court.

         On July 21, 2017, [1] Movant filed a motion for appointment of counsel to determine whether a sentencing guidelines amendment and 18 U.S.C. § 3582(c) (governing sentence modification) applied to his case. (Mot. to Appoint Counsel, ECF No. 146). The Court denied the motion. (Order of Aug. 9, 2017, ECF No. 147).

         On October 12, 2017, [2] Movant filed a motion for leave to file a pro se motion for a sentence reduction. (Mot. for Leave to File, Conclusion, ECF No. 148). Movant asked the Court to reduce his sentence to sixty months and “for another opportunity to grant me a Motion for Leave to File a Pro se Motion in order to find a remedy for my sentence reduction, through a 2255 or 2241 petition for writ of habeas corpus.” (Mot. for Leave to File at 1).

         The Court denied the motion as follows -

Defendant appears to seek the Court's permission to file a motion for sentence reduction, a motion to attack his sentence under 28 U.S.C. § 2255, or a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Defendant also requests that the Court reduce his sentence to sixty (60) months incarceration.
Defendant's Motion is denied. If Defendant requests that his sentence be reduced or modified, he must file a motion that clearly states the basis for the requested relief and the legal authority for the Court to consider the request. It is unclear what specific relief Defendant requests in his Motion, other than a sentence reduction. Defendant has not shown that he is entitled to a sentence reduction under one of the narrow exceptions provided for under the law.

(Order of Oct. 30, 2017, at 2, ECF No. 149).

         On January 22, 2018, [3] Movant filed a second (identical) motion for leave to file a pro se motion for a sentence reduction. (Second Mot. for Leave to File, ECF No. 150). The Court denied the second motion for the reasons already stated in its earlier order. (Order of Feb. 6, 2018, ECF No. 151).

         In April 2018, Movant filed in the Eleventh Circuit Court of Appeals an application for leave to file a second or successive § 2255 motion. In re: Jose Vega-Cervantes, No. 18-11696-H (11th Cir. May 23, 2018). The Eleventh Circuit denied the application and found that Movant had ...


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