United States District Court, W.D. Arkansas, Fort Smith Division
JOSE I. CALDERON, Petitioner,
SHELIA SHARP, Director Department of Community Corrections; and DALE OWEN, Respondent.
AMENDED MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES R. MARSCHEWSKI, Chief Magistrate Judge.
Before the undersigned for report and recommendation is the petitioner's Motion for a Certificate of Appealability (ECF No. 45) filed December 3, 2014 and (ECF No. 47) filed December 4, 2014. The Motion was referred to the undersigned on December 4, 2014 and the Government filed a Response (ECF No. 48) on December 9, 2014.
The Background is set forth in the Report and Recommendation (ECF No. 38), which was approved by the District Court on November 5, 2014 and an Order entered Dismissing the Petitioner's Motion (ECF No. 41).
A. First Five Claims:
The Petitioner asserts in his Motion that "the district court failed to fully address the evident violation of his constitutional right of effective assistance of trial counsel, particularly in reference to his first five claims which the Court declined to review on their merits". (ECF No. 47, p. 5).
On March 28, 2014 the court entered an Order (ECF No. 11) which acknowledge that the first five grounds the Petitioner asserted in his Petition were clearly barred by the statutory limitations period, but the court felt that the Petitioner's sixth ground (Padilla claim) required the court to appoint an attorney and set the matter for a hearing. The court's order specifically provided:
While the court has indicated that it believes the Petitioner's claims 1-5 would be barred by the limitations period the Petitioner's attorney shall not be precluded from advancing additional argument at the Evidentiary Hearing provided that any arguments shall have bee properly briefed at least 30 days prior to the Hearing. The Defendant's Response shall be filed 14 days prior to the Evidentiary Hearing." ( Id., p. 8).
Prior to the Evidentiary Hearing the Petitioner never indicated to the court that he intended to contest the court's determination that Grounds 1-5 were barred by the limitations period and the court entered an Order (ECF No. 36) on August 14, 2014 limiting the Evidentiary Hearing to the Padilla claim. At the Evidentiary Hearing the Petitioner did not put forth any argument that he had any evidence to show that Grounds 1-5 should not be barred by the limitations period and in the Motion for Certificate of Appealability the Petitioner has not put forth any evidence to establish why his Grounds 1-5 are not barred.
Vague and conclusory allegations are not sufficient to state a ground for relief under 28 U.S.C. § 2255. See Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir.). See also Smith v. United States, 677 F.2d 39, 41 (8th Cir.1982) (conclusory allegations, unsupported by any specifics, are subject to summary dismissal). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal... " Blackledge v. Allison, 431 U.S. 63, 74 (1977); Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir.1985)
B. Padilla Claim:
The Petitioner also asserts that although "this Court addressed the last claim (Padilla Claim) on the merits, Mr. Calderon also submits the Magistrate Judge erred in his factual findings and legal determination." (ECF No. 47, p. 5).
There is no dispute that Calderon was ordered deported long before he ever pled guilty in Arkansas. The record and evidence clearly establishes that a prior deportation order was entered against the Petitioner and that ICE filed a detainer against the Petitioner at the time of his arrest and he expected to be deported. As noted in the report and recommendation, Calderon admitted as much at the hearing. Given this undisputed fact there could be no prejudice from McCauley's failure to advise about immigration consequences flowing from his Arkansas guilty plea, even assuming she had failed to do ...