UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 4:19-cv-10032-KMM-1

LEIMER PEREZ CASTRO,

Movant, v.

UNITED STATES OF AMERICA,

Respondent. /

ORDER ON REPORT AND RECOMMENDATION THIS CAUSE came before the Court upon pro se Movant Leimer Perez Castro’s (“Movant”) Amended Motion Under

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (“Am. Mot.”) (ECF No. 30). The Court referred the matter to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendation recommending that the Amended Motion be DENIED. (“R&R”) (ECF No. 37). Movant did not file objections and the time to do so has passed. The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R.1 The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.

(b)(1); Fed. R. Civ. P. 72(b)(3). On May 7, 2018, Movant pled guilty to one count of conspiracy with intent to distribute five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of

(a)(1) and 70506(b). (CR-ECF Nos. 20, 25).2 On July 9, 2018, Movant was sentenced to a total term of 168 months’ imprisonment, to be followed by a term of five (5) years of supervised release. (CR-ECF Nos. 44, 47). On February

1 The Court adopts the R&R with the following alteration: on page eight, line seventeen, the citation should read: “Hill v. Lockhart,

(1985).” 2 References to Movant’s criminal case, United States v. Castro, et al., 4:18-cr-10010-KMM-1, are notated as “CR-ECF No. __”. 22, 2019, Movant filed his first Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No 1). Movant filed several amendments thereafter, resulting in the filing of the final Amended Motion on July 23, 2019. Am. Mot. Therein, Movant asserts the following ineffective assistance of counsel claims: (1) counsel failed to file a pretrial motion to dismiss based on a delay in presentment for Movant’s initial appearance; (2) counsel failed to file a motion to suppress the field test which came back positive for drugs; (3) counsel permitted Movant to admit, as part of the negotiated plea agreement, that he was the “master” of

the vessel he was arrested on; (4) counsel failed to object to the quantity of drugs attributable to Movant at sentencing; and (5) counsel failed to seek a hearing or otherwise require that the Government file a motion for reduction in sentence based on Movant’s cooperation.3 See generally id.; Reply (ECF No. 36). As set forth in the R&R, Magistrate Judge Reid recommends that the Motion be denied on the merits. R&R at 18. Specifically, Magistrate Judge Reid finds that as to each of Movant’s ineffective assistance of counsel claims, Movant fails to demonstrate deficiency or prejudice under Strickland v. Washington,

(1984).

at 8–17. First, Magistrate Judge Reid finds that Movant has not demonstrated that the fifteen (15) day delay between his search and seizure on the high seas and his presentment before a magistrate judge was unreasonable.

at 10–12. Second, Magistrate Judge Reid finds that Movant has not demonstrated that challenging the nature or quantity of the drugs would have resulted in a finding that the total amount of cocaine seized aboard the vessel was less than the amount that guided Movant’s base sentencing level— 450 kilograms, when in fact Movant agreed to be held accountable for 1,120 kilograms as part of

3 The fifth claim, that Movant’s counsel failed to seek a reduction in Movant’s sentence for his cooperation, does not appear in the Amended Motion and is improperly raised for the first time in Movant’s Reply (ECF No. 36). See, e.g., Herring v. Sec’y, Dep’t of Corr.,

(11th Cir. 2005). However, the Court nonetheless briefly discusses why this claim fails on the merits. his negotiated plea agreement. /d. at 12-13. Third, Magistrate Judge Reid finds that Movant stipulated that he identified himself as the master of the vessel when law enforcement boarded the vessel, and Movant cannot demonstrate Strickland deficiency or prejudice for counsel’s failure to challenge Movant’s representations while aboard the vessel prior to his change of plea. /d. at 13. Further, “Movant waived pursuit of any defenses when he entered into a knowing and voluntary plea.” Jd. Fourth, Magistrate Judge Reid finds that Movant and his co-conspirators stipulated that they were each accountable for the entire load seized aboard the vessel, and thus were properly held accountable under U.S.S.G. § 1B1.3. /d. at 14. Fifth, Magistrate Judge Reid finds that nothing in the record suggests that the Government made any representation that it would file or consider filing a Rule 35(b) motion on Movant’s behalf, nor is there any allegation that the Government refused to do so with an unconstitutional motive. /d. at 15-17. Finally, Magistrate Judge Reid finds that Movant is not entitled to an evidentiary hearing in this matter and recommends that no certificate of appealability issue, because Movant cannot meet his burden to show that reasonable jurists could find the denial of his § 2255 motion debatable. /d. at 17-18. The Court agrees. UPON CONSIDERATION of the Amended Motion, the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Magistrate Judge Reid’s Report and Recommendation (ECF No. 37) is ADOPTED and Movant’s Amended Motion Under

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 30) is DENIED. The Clerk of Court is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of May, 2021. KO) aren K. MICHAEL MOORE CHIEF UNITED STATES DISTRICT JUDGE c: All counsel of record

Leimer Perez Castro 17348-104 Fort Dix Federal Correctional Institution Inmate Mail/Parcels Post Office Box 2000 Joint Base MDL, NJ 08640 PRO SE