Opinion
CRIMINAL ACTION NO. 4-10.
October 5, 2007
OPINION ORDER
This matter is before the Court on the Motion to Compel (Rec. No. 123) and the Motion to Vacate under 28 U.S.C. 2255 (Rec. No. 131) filed by the Defendant, the Motion to Dismiss (Rec. No. 138) filed by the United States, and the Report and Recommendation filed by the Magistrate Judge (Rec. No. 156).
With his Motion to Compel (Rec. No. 123), the Defendant asked the court to enter an order directing his former attorney to give him records and files of this case in order to prepare his § 2255 motion. Approximately two months after filing his Motion to Compel, the Defendant filed a § 2255 motion. Accordingly, the Motion to Compel will be denied as moot.
The United States filed a Motion to Dismiss (Rec. No. 138) the Defendant's § 2255 motion arguing that, in his plea agreement, the Defendant had waived his right to collaterally attack his conviction. The government did not address the merits of the Defendant's arguments in his § 2255 motion. Because the Defendant argued in his § 2255 motion that his waiver was not knowing and voluntary and was the result of ineffective assistance of counsel and because the Defendant had attacked this court's subject matter jurisdiction over his conviction, the Magistrate Judge determined that he could not dismiss the § 2255 motion solely on the grounds that the Defendant had waived his right to file such a motion. The Magistrate Judge then ordered the United States to respond to the merits of the Defendant's § 2255 motion. Accordingly, the government's Motion to Dismiss (Rec. No. 138) will be denied as moot.
The government filed a response to the Defendant's § 2255 motion and the Defendant replied. The Magistrate Judge has filed a Report and Recommendation (Rec. No. 156) in which, after reviewing the record and applicable law, he recommends that the Defendant's motion should be denied with prejudice and that a certificate of appealability should not be issued. The Magistrate Judge gave the parties ten (10) days to file objections.
The Defendant did not file any objections to the Magistrate Judge's Report and Recommendation. The court has reviewed the Report and Recommendation and, finding it sound, hereby adopts the Magistrate Judge's proposed findings of fact and conclusions of law. Accordingly, the Court, being otherwise sufficiently advised, HEREBY ORDERS that:
(1) The Magistrate Judge's Report and Recommendation (Rec. No. 156) is ADOPTED as the opinion of the Court; (2) The Defendant's Motion to Vacate or Set Aside Sentence (Rec. No. 131) is DENIED; (3) The Defendant's Motion to Compel (Rec. No. 123) is DENIED as moot; (4) The United States' Motion to Dismiss (Rec. No. 138) is DENIED as moot; and (5) A certificate of appealability should not be issued.