United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION & ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court on Defendant Francisco Leon's
Motion to Vacate his Sentence pursuant to 28 USC § 2255.
United States Magistrate Judge Hanly Ingram has filed a
report and recommendation in which he recommends dismissal of
the Motion as untimely. [DE 79');">79');">79');">79]. Leon has filed objections.
[DE 87]. Having considered the matter de novo, the
Court adopts Magistrate Judge Ingram's recommendation as
habeas petitioner may object to and seek review of a
magistrate judge's report and recommendation.
Fed.R.Civ.P. 72(b)(2). If objections are made, “[t]he
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). “Only those
specific objections to the magistrate's report made to
the district court will be preserved for appellate
review.” Carson v. Hudson, 60');">421 Fed.Appx. 560,
563 (6th Cir. 2011) (quoting Souter v. Jones, 395
F.3d 577, 585-86 (6th Cir. 2005)).
does not object to the facts and procedural background
outlined in the Magistrate's recommendation.
petitioner pleaded guilty in October 2012 to possession with
intent to distribute 1, 000 grams or more of a mixture of
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. § 841(a)(1). In Leon's
presentence report, the United States Probation Office
recommended withholding an acceptance of responsibility
credit under United States Sentencing Guideline § 3E1.1
after Leon's bond was revoked for trying to obtain 3.2
pounds of methamphetamine while on pretrial release. [DE 51,
p. 4; 79');">79');">79');">79, p. 2]. This Court sentenced Leon to ninety-six
months in prison followed by three years of supervised
release. [DE 42, pp. 2-3]. On its own motion, the Court
denied a sentence reduction under 18 U.S.C. § 3582(c)(2)
because the “defendant's sentence is below the
amended advisory guidelines range.” [DE 46]. Six months
later, Leon moved under that same provision to reduce his
sentence, which the Court denied. [DE 47; 48].
appealed that Order, although he never appealed his
conviction. The Sixth Circuit instructed this Court to
provide a statement of reasons why the Court denied
Defendant's motion. [DE 57]. In a July 2016 Order, this
Court explained its decision. [DE 60]. The Court first
pointed out that Leon's sentence was “a term
slightly more than one half of the bottom end of the advisory
guideline range.” [Id. at p. 3]. The Court
also determined that the sentence was sufficient but not
greater than necessary based on Defendant's behavior
outlined in his presentence report. In particular, the report
stated that Leon attempted to obtain an additional 3.2 pounds
of methamphetamine while on pretrial release. The report also
noted Leon's extensive financial profile that included
more than $1 million in real estate in four states, while
earning $62, 000 annually-a fact that “suggests a
lengthy involvement in the drug trade.” [DE 60, p. 4].
The Sixth Circuit affirmed the denial of Defendant's
motion on January 11, 2017. [DE 70]. The panel found that
this Court did not abuse its discretion by relying on the
presentence report since Leon did not object to it and
“[b]y failing to object to the presentence report, [a
defendant] accept[s] all of the factual allegations contained
in it.” United States v. Vonner, 516 F.3d 382,
385 (6th Cir. 2008) (en banc).
now claims he was denied effective assistance of counsel
because his lawyer failed to (1) investigate the facts
surrounding the bond revocation and (2) object to his
reported income in the presentence report. He filed a motion
pursuant to § 2255 seeking relief that was referred to
Magistrate Judge Hanly Ingram. [DE 72]. Judge Ingram issued
an Order requiring Leon to show cause why his petition should
not be dismissed as time barred under § 2255(f). [DE
75]. Leon filed a response arguing that his petition was
timely under § 2255(f)(4). Judge Ingram issued a Report
and Recommendation that rejected Leon's arguments and
recommended denying Leon's petition and a certificate of
appealability. [DE 79');">79');">79');">79]. After filling four motions for
extensions to file objections, Leon filed his objections,
making the matter ripe for review. [DE 87]. Leon argues that
the Magistrate Judge erred in finding that his petition is
time barred. [Id.]. In particular, Leon argues that
the one-year statute of limitations began running when the
Sixth Circuit issued its Order on January 11, 2017. Because
this argument is without merit, this Court adopts the
recommended disposition from Judge Ingram.
Court must now decide whether the Sixth Circuit's Order
affirming this Court's denial of petitioner's motion
for reduction in sentence amounts to a “fact”
under § 2255(f)(4). The Magistrate Judge found that it
did not, and this Court agrees.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) contains a one-year statute of
limitations. 28 U.S.C. § 2255(f). There are four
“starting points” that trigger the running of the
clock. They are:
The limitation period shall run from the ...