Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Leyva-Garcia v. United States

United States District Court, D. Arizona

November 9, 2015

Lamberto Leyva-Garcia, Movant/Defendant
v.
United States of America, Respondent/Plaintiff.

REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on March 30, 2015 (Doc. 4). On August 25, 2015, Respondent filed its Response (Doc. 16), and an Affidavit from trial counsel (Doc. 15). Movant has not replied.

The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

Movant's Plea Agreement provided the following statement of factual basis:

I am not a citizen or national of the United States. I was removed from the United States through El Paso, Texas, on June 22, 2013. I was voluntarily present and found in the United States at or near San Luis, Arizona, on December 11, 2013. I did not obtain the express consent of the United States government to reapply for admission to the United States prior to returning to the United States.
For sentencing purposes, I admit I was convicted of Re-entry of Removed Alien, a felony, on June 13, 2011, in the United States District Court, District of Arizona. I was represented by an attorney, and I was sentenced to eighteen (18) months imprisonment and three (3) years supervised release.
I further admit that I was under a term of supervised release in No. CR-11-00443-001-PHX-DGC when the present offense was committed.

(CR 21, Plea Agreement at 8-9.) [1]

B. PROCEEDINGS AT TRIAL

Movant was charged in a Complaint (CR 1) and then in an Indictment (CR 9) on charges of re-entry after removal. Counsel Weidner was appointed to represent Movant. (CR 2, ME 12/13/13.)

On March 18, 2014, Movant entered into a written Plea Agreement (CR 21), agreeing to plead guilty to the Indictment and to waive appellate and collateral attack rights, in exchange for various agreements on sentencing. On the same date, Movant entered a plea of guilty. (CR 18, Mag. Judge Findings & Recommendation.)

On June 4, 2014, Movant was sentenced to 24 months, consecutive to the 15 month sentence imposed on violation of supervised release in the prior prosecution. (CR 22, Judgment; Order 4/24/15, Doc. 5 at 2, n. 1.)

C. PROCEEDINGS ON DIRECT APPEAL

Movant did not file a direct appeal.

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Motion - Movant commenced the current case by filing his original Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on February 13, 2015 (Doc. 1). On February 24, 2015, that Motion was dismissed with leave to amend. (Order 2/24/15, Doc. 3.) On March 30, 2015, Movant filed his Amended Motion (Doc. 4) ("Motion"). "In his Amended Motion, Movant alleges that his trial counsel was ineffective because he failed to file a motion to dismiss the illegal reentry charge based on the invalidity of Movant's prior removal." (Order 4/24/15, Doc. 5 at 2.) Movant argues that his prior removal was based upon a simple possession of cocaine (a trace amount on a $20 bill), which was not a valid basis for deportation. (Motion, Doc. 4 at 5.)

Waiver - On June 30, 2015, Respondent filed a Motion to Declare Attorney Client Privilege Waived (Doc. 8). The motion was denied, but Movant was given 14 days to file a limited Waiver of attorney-client privilege, withdraw his claim of ineffective assistance, or to propose modifications. (Order 7/1/15, Doc. 9 at 2.) On July 13, 2015, Movant filed a signed Waiver (Doc. 10).

Response - On August 25, 2015, Respondent filed its Response (Doc. 16) to the Motion, and an Affidavit (Doc. 15) of trial counsel. Respondent argues that Movant's claim of ineffective assistance is without merit because Movant has never had any immigration status or legal authorization to remain in the United States, and his removal was unrelated to his criminal history, and that trial counsel investigated these facts and appropriately advised Movant, making his guilty plea knowing and voluntary.

Reply - In an Order filed August 26, 2015 (Doc. 18), Movant was given through September 28, 2015 to reply in support of his Motion. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.