United States District Court, E.D. Arkansas, Eastern Division
BETH DEERE, Magistrate Judge.
I. Procedure for Filing Objections:
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge D. P. Marshall Jr. Any party may file written objections to this Recommendation.
Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding believed to be incorrect and must describe the evidence that supports that belief.
An original and one copy of objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation. A copy will be furnished to the opposing party.
If no objections are filed, Judge Marshall can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Mail your objections and "Statement of Necessity" to:
Petitioner Melvin Omar Valez-Santos pleaded guilty in the United States District Court for the Middle District of Florida to one count of conspiracy to commit offenses against the United States, and two counts of making a false statement to a federally licensed firearms dealer. (Docket entry #9-1 at p. 1) Judge Richard Lazzara sentenced Mr. Valez-Santos to an aggregate term of 240 months in the Bureau of Prisons ("BOP"). (#9-1 at p. 2) Mr. Valez-Santos timely filed a notice of appeal. His lawyer, however, later filed a motion to dismiss the appeal with prejudice, which the Eleventh Circuit granted. Velez-Santos  v. United States, 469 F.Appx. 809, 810 (11th Cir. 2012).
Mr. Valez-Santos filed a petition under 28 U.S.C. § 2255, challenging his sentence. In the petition, Mr. Valez-Santos complained that his counsel was ineffective because he failed to perfect an appeal, despite being instructed to do so; failed to challenge the sentencing guidelines' base offense level; failed to challenge the ten-level enhancement for involvement of 200 or more firearms; and failed to challenge the four-level enhancement for his role in the offenses. (#9-2)
Mr. Valez-Santos filed a motion with the trial court to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. (#9-3) Judge Lazzara appointed new counsel for Mr. Valez-Santos and held an evidentiary hearing at which Mr. Valez-Santos and his former lawyer testified. Velez-Santos, 469 F.Appx. at 810. The Eleventh Circuit summarized Judge Lazarra's findings as follows:
The court found that the lawyer "testified quite clearly that... he did have [Velez-Santos'] authority to dismiss the appeal prior to filing of the motion with the Eleventh Circuit." Id. Crediting the lawyer's testimony, the court found that Velez-Santos was "in agreement to dismiss his appeal, " and it denied the § 2255 motion.
Judge Lazzara did issue a certificate of appealability, however, on the question of whether Mr. Valez-Santos's appellate counsel was ineffective for moving to dismiss Mr. Valez-Santos's direct appeal without authorization. (#9-4) Mr. Valez-Santos appealed, and the Eleventh Circuit affirmed. Velez-Santos, 469 F.Appx. at 811. The Court found that substantial evidence supported the district court's finding that Mr. Valez-Santos's lawyer had authorization from Mr. Valez-Santos to file the motion to dismiss the appeal. Id. The Court also noted that Mr. Valez-Santos had not responded to a letter ...