Opinion
Case No. 13-22901-CIV-SEITZ/WHITE
11-05-2014
LAZARO CACERES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING AND AFFIRMING MAGISTRATE'S REPORT, DENYING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY
In this section 2255 petition, Petitioner Lazaro Caceres challenges the lawfulness of his guilty plea and 60-month sentence on grounds that his counsel rendered ineffective assistance by failing to file certain motions, make certain objections, and investigate certain evidence in pretrial discovery and during sentencing. Magistrate Judge Patrick A. White has recommended that the Court deny the petition for three reasons. [DE-31.] First, Caceres pled guilty freely and voluntarily, thereby waiving any claims relating to non-jurisdictional defects in his criminal proceeding such as counsel's failure to investigate certain evidence during pretrial discovery. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Pierre, 120 F.3d 1153,1155 (11th Cir. 1997). Second, the record contains no indication of any defective performance by Caceres' counsel in relation to pretrial discovery. Third, Caceres' counsel vigorously pursued every applicable argument and presented all relevant evidence during sentencing, ultimately obtaining a 60-month sentence even though Caceres had initially faced a guidelines range of 97 to 121 months. (See Sentencing Tr. [DE-30-2] 36:17-25.)
Having reviewed, de novo, Magistrate Judge White's Report and the record, the Court fully agrees with Judge White's factual findings and recommendation to deny the petition. Moreover, Caceres has not objected to Magistrate Judge White's Report, and his time to do so has passed. There is no basis for a certificate of appealability because Caceres has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Jones v. Sec'y, Dep't of Corr., 607 F.3d 1346, 1349 (11th Cir. 2010). Accordingly, it is hereby
ORDERED that
1) Magistrate Judge White's Report [DE-31] is AFFIRMED and ADOPTED and incorporated by reference into this Court's Order.
2) This case is DISMISSED WITH PREJUDICE for failure to state a claim.
3) Any request for a certificate of appealability is DENIED.
4) This case is CLOSED for administrative purposes. Any pending motions are DENIED AS MOOT.
DONE AND ORDERED in Miami, Florida, this 5th day of November, 2014.
/s/_________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge White
Counsel of Record