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Noesi v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
Jan 14, 2021
Case Number: 19-24884-CIV-MARTINEZ-REID (S.D. Fla. Jan. 14, 2021)

Opinion

Case Number: 19-24884-CIV-MARTINEZ-REID Criminal Case Number: 12-20728-CR-MARTINEZ

01-14-2021

JOSE F. NOESI, Movant, v. UNITED STATES OF AMERICA, Respondent.

Copies provided to: Magistrate Judge Reid All Counsel of Record Jose F. Noesi, pro se


ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

THIS CAUSE was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, for a Report and Recommendation ("R&R") on Movant's pro se 28 U.S.C. § 2255 Motion to Vacate, [ECF Nos. 1-2]. After initial screening, Magistrate Judge Reid filed an R&R, [ECF No. 20], recommending that Movant's Motion to Vacate be dismissed as untimely, that judgment be entered in favor of Respondent, that no certificate of appealability be issued, and that the case be closed. On December 4, 2020 and December 9, 2020, Movant filed "appeals" to the Eleventh Circuit Court of Appeals on the R&R, [ECF Nos. 21-22]. This Court struck the filings, noted that an appeal was premature, and sua sponte granted Movant an extension to file proper objections, [ECF No. 23]. Movant then filed an "Appeal to the U.S. District Court Judge in Opposition of the U.S. Magistrate's Report and Recommendation," [ECF No. 24], which the Court will construe as Movant's objections to the R&R. The Court has conducted a de novo review of the entire record and agrees with the R&R's conclusion that Movant's Motion to Vacate is untimely under § 2255(f).

The Court first notes that there is an apparent scrivener's error in the R&R. It is apparent that the R&R inadvertently omitted an applicable subsection of § 2255(f). It should state that pursuant to 28 U.S.C. § 2255(f), the one-year limitation period shall run from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Id. Nonetheless, the R&R's analysis is sound and reflects an accurate understanding of the timeliness issue under the statute.

Movant's objections and reliance on United States v. Haymond, 139 S. Ct. 2369 (2019), does not alter this analysis. Movant has not shown that Haymond has been made retroactively applicable to cases on collateral review. See United States v. Salazar, 784 F. App'x 579, 584 (10th Cir. 2019) (holding "a reasonable jurist could not debate the conclusion that Haymond is not retroactive and does not satisfy section 2255(f)(3)"). Nor has Movant shown how the rule espoused in Haymond is even applicable to the facts of his case.

In Haymond, a split Supreme Court decided that 18 U.S.C. § 3583(k), as applied to Haymond, violated the Fifth and Sixth Amendment rights to a jury trial because it required a district court to sentence a defendant to a five-year mandatory minimum based on a judge's fact-finding by a preponderance of the evidence. 139 S. Ct. at 2378. Unlike Haymond, Movant was (a) not sentenced under § 3583(k), and (b) not exposed to an additional mandatory minimum term beyond that authorized by his initial conviction. Id. at 2381-84.

Accordingly, after careful consideration, it is hereby:

ADJUDGED that United States Magistrate Judge Reid's Report and Recommendation, [ECF No. 20], is AFFIRMED and ADOPTED.

Accordingly, it is further ADJUDGED that:

1. Movant's pro se Motion to Vacate under 28 U.S.C. § 2255, [ECF No. 1], is DENIED and DISMISSED as untimely.

2. Judgment is ENTERED in favor of Respondent.

3. No certificate of appealability shall issue.

4. This case is CLOSED, and all pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of January, 2021.

/s/_________

JOSE E. MARTINEZ

UNITED STATES DISTRICT JUDGE Copies provided to:
Magistrate Judge Reid
All Counsel of Record
Jose F. Noesi, pro se


Summaries of

Noesi v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
Jan 14, 2021
Case Number: 19-24884-CIV-MARTINEZ-REID (S.D. Fla. Jan. 14, 2021)
Case details for

Noesi v. United States

Case Details

Full title:JOSE F. NOESI, Movant, v. UNITED STATES OF AMERICA, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

Date published: Jan 14, 2021

Citations

Case Number: 19-24884-CIV-MARTINEZ-REID (S.D. Fla. Jan. 14, 2021)