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15-364 - USA v. ARREOLA et al


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15-364 - USA v. ARREOLA et al
June 23, 2017
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/23/2017, that Petitioners Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 180) and his Motion for Default Judgment (Docket Entry 195) be denied without a certificate of appealability, except that the Court should order an evidentiary hearing on Petitioner's claims (raised for the first time in his Reply) that his counsel provided ineffective assistance when she (1) "fail [ed] to raise th[e] issue [of a Minor Role reduction under U.S.S.G. § 3B1.2 (b)] on 'Direct Appeal' even-though [Petitioner] requested that [counsel] do so" (Docket Entry 204 at 5), and (2) "withheld the fact that [Petitioner] would have been allowed to plead guilty to 37 months under [a] Fed. R. Crim. P. Rule 11-c-1-c plea" (id. at 10). (Civil Case number: 16CV1387) (Garland, Leah)
August 8, 2017
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ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/07/2017, as to DARREN GERRARD CLAY (6), adopting the Magistrate Judge's Recommendation, that Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 180) and his Motion for Default Judgment (Doc. 195) are DENIED except that the court directs that the Magistrate Judge hold an evidentiary hearing on Petitioner's claim that his counsel provided ineffective assistance when she (1) "fail[ed] to raise th[e] issue [of a Minor Role reduction under U.S.S.G. § 3B1.2(b)] on 'Direct Appeal' even-though [Petitioner] requested that [counsel] do so" (Doc. 204 at 5), and (2) "withheld the fact that [Petitioner] would have been allowed to plead guilty to 37 months under [a] Fed. R. Crim. P. Rule 11-c-1-c plea" (id. at 10). Because this is an interlocutory order, it would appear that a finding as to appealability need not be given. To the extent one is required, however, the court finds neither a substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling. Therefore, a certificate of appealability is not issued. (Civil Case number: 16CV1387).. (Garland, Leah)