Filed: Oct. 05, 2015
Latest Update: Oct. 05, 2015
Summary: ORDER TIMOTHY L. BROOKS , District Judge . On September 3, 2015, the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, submitted a Report and Recommendation ("R & R") (Doc. 26) concerning Defendant Marshal Duncan's Motion to Compel Specific Performance of the Plea Deal (Doc. 22). The Magistrate Judge considered Duncan's Motion as well as the Government's written Response (Doc. 24) before rendering her recommendation that the Motion be dismissed.
Summary: ORDER TIMOTHY L. BROOKS , District Judge . On September 3, 2015, the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, submitted a Report and Recommendation ("R & R") (Doc. 26) concerning Defendant Marshal Duncan's Motion to Compel Specific Performance of the Plea Deal (Doc. 22). The Magistrate Judge considered Duncan's Motion as well as the Government's written Response (Doc. 24) before rendering her recommendation that the Motion be dismissed. ..
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ORDER
TIMOTHY L. BROOKS, District Judge.
On September 3, 2015, the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, submitted a Report and Recommendation ("R & R") (Doc. 26) concerning Defendant Marshal Duncan's Motion to Compel Specific Performance of the Plea Deal (Doc. 22). The Magistrate Judge considered Duncan's Motion as well as the Government's written Response (Doc. 24) before rendering her recommendation that the Motion be dismissed. The Court conducted a de nova review of the record in light of Duncan's timely filed objections to the R & R. See Doc. 27.
Duncan maintains that when he was sentenced in this district on February 5, 2010 to 120 months imprisonment for the crime of knowingly possessing, receiving, concealing, and storing a stolen firearm, his total offense level and criminal history score were both calculated incorrectly. Assuming Duncan is correct, the fact is that he never filed a direct appeal as to the validity of his sentence, which was imposed more than five years ago. He also failed to make a showing either in his Motion to Compel Specific Performance of the Plea Deal or in any other pleading that he was actually innocent of the crime to which he pleaded guilty or that any good cause existed to excuse his failure to file a direct appeal.1
Duncan's objections to the R & R are without merit. He does not address the Magistrate's reasoning as to why his claims now are procedurally barred. He fails to explain why he neglected to file a direct appeal of his sentence. Instead, he simply reiterates his position regarding the calculation of his guideline sentence and asserts that he "did not benefit from pleading guilty." (Doc. 27, p. 1). The Court finds that his objections offer neither fact nor law that requires deviation from the Magistrate Judge's recommendation. Accordingly, habeas relief pursuant to 28 U.S.C. § 2255 is unavailable for the reasons stated in the R & R.
IT IS THEREFORE ORDERED that the R & R (Doc. 26) is ADOPTED IN ITS ENTIRETY, and Duncan's Motion to Compel Specific Performance of the Plea Deal (Doc. 22) is DENIED.
IT IS SO ORDERED.
