Negron v. United States, Civil No. 11–1264 DRD.
| Decision Date | 18 March 2014 |
| Docket Number | Criminal No. 08–204 [2] DRD.,Civil No. 11–1264 DRD. |
| Citation | 18 F.Supp.3d 89 |
| Parties | Javier TORRES NEGRON, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Javier Torres-Negron, pro se.
Nelson J. Perez-Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
Pending before the Court is petitioner Javier Torres Negrón (“Torres Negrón”) Motion To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody pursuant to 28 U.S.C. § 2255. See Docket No. 1. For the reasons set forth below, the petitioner's motion under 28 U.S.C. § 2255 is denied, as being time barred.
This matter was referred to United States Magistrate Judge Justo Arenas (“Magistrate Judge Arenas” or “Magistrate Judge”), who recommended, through a Report and Recommendation entered on February 9, 2012, that the petitioner's motion for post-conviction relief be denied. See Docket No. 6. As of this date, the Report and Recommendation issued by Magistrate Judge Arenas stands unopposed.1 The Report and Recommendation is, hence, deemed unopposed to be reviewed only under the “plain error” standard.
The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993) ; Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”); Rule 72 of the Local Rules for the District of Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge's report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72 ; Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:
Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc ) (); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc ) (); Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) ()(adopting the Advisory Committee note regarding Fed.R.Civ.P 72(b) ); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) ().
In the instant case, the Magistrate Judge issued a Report and Recommendation on February 9, 2012, Civil No. 11–1264, Docket No. 6. The Magistrate Judge granted the parties fourteen days to object the Report and Recommendation, from its receipt. The record shows that, as of this date, the Report and Recommendation stands unopposed, except for the petitioner's motion for leave to supplement, see Fn. 1 infra, and Docket No. 7, filed 28 days after the due date to file the objections to the Report and Recommendation, Docket No. 6. We therefor review the Magistrate's Report and Recommendation only under “clear erroneous” or “plain error” standard.
Petitioner Torres Negrón was charged with seven counts in the Indictment,2 to wit: (a) Count One for participation in a conspiracy in which he was one of the leaders, and the object was to distribute controlled substances at several places within the Municipality of Ponce, such as, the Ernesto Ramos Antonini Public Housing Project, also known as “Pampanos,” El Tuque Ward, Salistral Ward, an Rosaly Public Housing Project, as well as the Kennedy Public Housing Project in the Municipality of Juana Díaz, from which a significant financial gain and profit was derived; as a leader Torres Negrón “received proceeds from and was in charge of the drug trafficking organization's drug distribution points located at El Tuque Ward,” all in violation of 21 U.S.C. §§ 846, 841(a)(1), 860, see Docket No. 3, pages 14–15; (b) Count Two for possession with intent to distribute heroin within the Municipalities of Ponce and/or Juana Díaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860 ; and 18 U.S.C. § 2, see Docket No. 3, page 25; (c) Count Three for possession with intent to distribute cocaine base in the Municipalities of Ponce and/or Juana Díaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860 ; and 18 U.S.C. § 2, see Docket No. 3, page 28; (d) Count Four for possession with intent to distribute cocaine in the Municipalities of Ponce and/or Juana Díaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860 ; and 18 U.S.C. § 2, see Docket No. 3, page 32; (e) Count Five for possession with intent to distribute marijuana in the Municipalities of Ponce and/or Juana Díaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860 ; and 18 U.S.C. § 2, see Docket No. 3, page 35; (f) Count Six for “knowingly and intentionally, combine, conspire, and agree amongst with the defendants and with diverse other persons, to commit and an offense against the United States, that is, to knowingly and intentionally possess firearms during and in relation to a drug trafficking crime,” all in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(o ), see Docket No. 3, pages 36–37; (g) Count Seven for forfeiture due to a conviction of any or all of the controlled substances offenses charged in the Indictment, as provided by 21 U.S.C. § 853(a)(1) and (2), the United States shall forfeit “any property constituting, or derived from, proceeds obtained, directly or indirectly, as a result of said violation and any property used or intended to be used, in any manner or part, to commit, or to facilitate the commission of said violation, ... including rights, titles, interest in property, ... money,” see Docket No. 3, pages 37–38.
On September 21, 2009, Torres Negrón moved the Court to change his non-guilty, and on October 6, 2009, petitioner pled guilty to Counts One and Six of the seven count Indictment. See Criminal No. 08–204[2](DRD), Docket entries No. 2306, 2372 and 2374. See also Amended Plea Agreement,
Docket No. 3253. Petitioner was sentenced on February 9, 2010, see Docket No. 3262. See Report and Recommendation, Civil No. 11–1264(DRD), Docket No. 6, page 3. Counts Two, Three, Four, Five and Seven were dismissed, as a condition of the Plea Agreement, see
Judgment, Criminal No. 08–204(DRD), Docket No. 3262.
Petitioner Torres Negrón was sentenced on February 9, 2010, and the Judgment was entered on February 16, 2010, see Criminal No. 08–204(DRD), Docket No. 3262. Hence, the Judgment became final and unappealable on March 2, 2010, pursuant to the provisions of Rule 4(b)(1)(A) of the Federal Rules of Criminal Procedure. Mr. Torres Negrón mailed its Petitioner's motion under § 2255 on March 9, 2011, and was filed with the Court on March 15, 2011, see Civil No. 11–1264(DRD), hence, 378 days after the Judgment became final and unappealable. Section 2255(f)(1) provides in its relevant part that “[t]he limitation period shall run from the latest of ... the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).3 Thus, the petition filed by Torres Negrón under Section 2255 is time barred. See Civil No. 11–1264, Docket No. 3–1.
Petitioner Torres Negrón claims that his sentence should be vacated due to the ineffective assistance of his counsel. See Civil No. 11–1264(DRD), Docket No. 1. In a nutshell, Torres Negrón claims that “his attorney failed to adequately investigate his mental competency and ability to knowingly and intelligently enter a plea.” See...
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