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Topete v. United States

United States District Court, N.D. Alabama, Northwestern Division

September 30, 2014

RAUL TOPETE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 3:05-CR-0257-SLB-PWG

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, District Judge.

This case is presently pending before the court on the parties' Objections, (docs. 35, 36, 38), [1] to the Magistrate Judge's Report and Recommendation, (doc. 33), recommending that petitioner Raul Topete's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [hereinafter Motion to Vacate], (doc. 1), be denied. Petitioner contends that his conviction for conspiracy and money laundering should be vacated based on the ineffectiveness of his counsel; he contends his counsel was ineffective based on seven grounds:

1. Failing to insure his Sixth Amendment right to an impartial jury by failing to strike a juror;
2. Refusing to allow Mr. Topete to testify in his own defense;
3. Failing to conduct any pretrial investigation;
4. Failing to object to the introduction of audio tapes into evidence;
5. Failing to challenge the testimony of witness Jason Moore;
6. Failing to object to the prosecutor's closing argument and to correct Government misstatements; and
7. Failing to correct the trial court's reliance on an inaccurate mandatory minimum and incorrect evidence as to drug quantity.

(Doc. 33 at 1-2.)

I. REVIEW OF REPORT AND RECOMMENDATION

The district court reviews de novo those parts of a Report and Recommendation to which a party objects. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3)("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The court may review the other parts of the Report and Recommendation for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)(citing Nettles v. Wainwright, 677 F.2d 404, 410 (11th Cir. 1982)). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

In this case, the Government has objected to the Magistrate Judge's finding that Mr. Topete was coerced into waiving his right to testify based on statements by his counsel. (Doc. 36.) Mr. Topete and his appointed counsel object to the Magistrate Judge's recommendation that his Motion to Vacate be denied. (Docs. 35, 38.)

II. SECTION 2255 STANDARD

Mr. Topete has the burden of showing he is entitled to relief from his sentence pursuant to 28 U.S.C. § 2255. See Greene v. United States, 880 F.2d 1299, 1301 (11th Cir. 1989)(citing United States v. Gray, 626 F.2d 494, 502 (5th Cir.1980), cert. denied 449 U.S. 1091 (1981)).[2] "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'" ...


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