Filed: Jan. 15, 2020
Latest Update: Jan. 15, 2020
Summary: ORDER TROY L. NUNLEY , District Judge . Movant, a federal prisoner proceeding through counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On November 15, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the
Summary: ORDER TROY L. NUNLEY , District Judge . Movant, a federal prisoner proceeding through counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On November 15, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the f..
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ORDER
TROY L. NUNLEY, District Judge.
Movant, a federal prisoner proceeding through counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 15, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Movant has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis with one modification. To the extent that movant's counsel withdraws his previous concession that the Sixth Amendment right to counsel does not extend to filing petitions for rehearing on direct appeal, the Court modifies the Findings and Recommendations on this point at page 5, lines 17-20. See ECF No. 377 at 5. Assuming without deciding that movant had a Sixth Amendment right to the effective assistance of counsel in filing a petition for rehearing in the Ninth Circuit Court of Appeal, the Court denies this claim for relief based on lack of prejudice. See Strickland v. Washington, 466 U.S. 668, 693-94 (1984). Movant has failed to meet his burden of demonstrating a reasonable probability of a different outcome on appeal in the event that a petition for rehearing was filed. Id. at 694.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed November 15, 2019, are adopted as modified herein;
2. Movant's motion to vacate, set aside or correct his sentence (ECF No. 354) is denied;
3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and
4. The Clerk of the Court is directed to close the companion civil case, No. 2:17-cv-0823, and to enter judgment in favor of respondent.
