Elawyers Elawyers
Ohio| Change

Garcia v. U.S., 1:05-CR-122-RWS. (2018)

Court: District Court, N.D. Georgia Number: infdco20181004f94 Visitors: 3
Filed: Oct. 02, 2018
Latest Update: Oct. 02, 2018
Summary: ORDER RICHARD W. STORY , District Judge . Presently before the Court is the Magistrate Judge s Report and Recommendation (R&R) recommending that the pending motion brought pursuant to 28 U.S.C. 2255 be denied. [Doc. 419]. Movant has filed his objections in response to the R&R. [Doc. 421]. A district judge has broad discretion to accept, reject, or modify a magistrate judge s proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667 , 680 (1980). Pursuant to 28 U.S.C
More

ORDER

Presently before the Court is the Magistrate Judge§s Report and Recommendation (R&R) recommending that the pending motion brought pursuant to 28 U.S.C. § 2255 be denied. [Doc. 419]. Movant has filed his objections in response to the R&R. [Doc. 421].

A district judge has broad discretion to accept, reject, or modify a magistrate judge§s proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the Report and Recommendation that is the subject of a proper objection on a de novo basis and any non-objected portion under a "clearly erroneous" standard.

In the R&R, the Magistrate Judge recommends that Movant§s § 2255 motion be denied as untimely pursuant to 28 U.S.C. § 2255(f). In his objections, Movant repeatedly asserts that his trial counsel was ineffective for failing to properly advise him about his appeal rights. While that contention may state a valid claim for relief, Movant has failed to demonstrate any reasonable basis for waiting over a decade to assert the claim so as to entitle him to equitable tolling or other relief from the operation of the one-year statute of limitation.

Accordingly, the R&R, [Doc. 419], is hereby ADOPTED as the order of this Court, and the § 2255 motion, [Doc. 418], is DENIED.

This Court further agrees with the Magistrate Judge that Movant has failed to raise any claim of arguable merit, and a Certificate of Appealability is DENIED pursuant to 28 U.S.C. § 2253(c)(2). Civil action number 1:18-CV-3454-RWS is DISMISSED.

IT IS SO ORDERED.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer