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United States v. Leon

United States District Court, E.D. Kentucky, Lexington

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
FRANCISCO LEON, Defendant/Petitioner.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood, Senior U.S. District Judge

         This 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 its own.

         I.

         A 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)).

         II.

         Leon does not object to the facts and procedural background outlined in the Magistrate's recommendation.

         The 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withholding an acceptance of responsibility credit under United States Sentencing Guideline § 3E1.1 after Leon's bond was revoked for trying to obtain 3.2 pounds of methamphetamine while on pretrial release.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].

         Defendant 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).

         Leon 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.

         III.

         This 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.

         The 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 ...

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