Torres Negron v. United States

18 F. Supp. 3d 89, 2014 U.S. Dist. LEXIS 36987, 2014 WL 1056582
CourtDistrict Court, D. Puerto Rico
DecidedMarch 18, 2014
DocketCivil No. 11-1264 (DRD); Criminal No. 08-204 [2] (DRD)
StatusPublished
Cited by1 cases

This text of 18 F. Supp. 3d 89 (Torres Negron v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres Negron v. United States, 18 F. Supp. 3d 89, 2014 U.S. Dist. LEXIS 36987, 2014 WL 1056582 (prd 2014).

Opinion

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court is petitioner Javier Torres Negron (“Torres Negron”) Motion To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody pursuant to 28 U.S.C. § 2255. See Docket No. 1. For the reasons set forth below, the petitioner’s motion under 28 U.S.C. § 2255 is denied, as being time barred.

This matter was referred to United States Magistrate Judge Justo Arenas (“Magistrate Judge Arenas” or “Magistrate Judge”), who recommended, through a Report and Recommendation entered on February 9, 2012, that the petitioner’s motion for post-conviction relief be denied. See Docket No. 6. As of this date, the Report and Recommendation issued by Magistrate Judge Arenas stands unopposed.1 The Report and Recommendation is, hence, deemed unopposed to be reviewed only under the “plain error” standard.

[91]*91Standard of Review

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”); Rule 72 of the Local Rules for the District of Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge’s report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72; Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:

Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

However, “[ajbsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc) (extending the deferential “plain error” standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (appeal from district court’s acceptance of unobjected findings of magistrate judge reviewed for “plain error”); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (“Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”)(adopting the Advisory Committee note regarding Fed. R.Civ.P 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (MD.Pa.1990) (“when no objections are filed, the district court need only review the record for plain error”).

In the instant case, the Magistrate Judge issued a Report and Recommendation on February 9, 2012, Civil No. 11-1264, Docket No. 6. The Magistrate Judge granted the parties fourteen days to object the Report and Recommendation, from its receipt. The record shows that, as of this date, the Report and Recommendation stands unopposed, except for the petitioner’s motion for leave to supplement, see Fn. 1 infra, and Docket No. 7, filed 28 days after the due date to file the objections to the Report and Recommendation, Docket No. 6. We therefor review the Magistrate’s Report and Recommendation only under “clear erroneous” or “plain error” standard.

Factual and Procedural Background

Petitioner Torres Negron was charged [92]*92with seven counts in the Indictment,2 to wit: (a) Count One for participation in a conspiracy in which he was one of the leaders, and the object was to distribute controlled substances at several places within the Municipality of Ponce, such as, the Ernesto Ramos Antonini Public Housing Project, also known as “Pámpanos,” El Tuque Ward, Salistral Ward, an Rosaly Public Housing Project, as well as the Kennedy Public Housing Project in the Municipality of Juana Diaz, from which a significant financial gain and profit was derived; as a leader Torres Negron “received proceeds from and was in charge of the drug trafficking organization’s drug distribution points located at El Tuque Ward,” all in violation of 21 U.S.C. §§ 846, 841(a)(1), 860, see Docket No. 3, pages 14-15; (b) Count Two for possession with intent to distribute heroin within the Municipalities of Ponce and/or Juana Diaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860; and 18 U.S.C. § 2, see Docket No. 3, page 25; (c) Count Three for possession with intent to distribute cocaine base in the Municipalities of Ponce and/or Juana Diaz, “within one thousand (1,000) feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground,” all in violation of 21 U.S.C. §§ 841(a)(1), 860; and 18 U.S.C. § 2, see Docket No.

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18 F. Supp. 3d 89, 2014 U.S. Dist. LEXIS 36987, 2014 WL 1056582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-negron-v-united-states-prd-2014.