U.S.
v.
Ugarte-Maldonado

United States District Court, E.D. Kentucky, Central Division at LexingtonMay 30, 2007
CRIMINAL ACTION NO. 05-26-KSF, (Civil Action No. 06-372-KSF). (E.D. Ky. May. 30, 2007)

CRIMINAL ACTION NO. 05-26-KSF, (Civil Action No. 06-372-KSF).

May 30, 2007


OPINION AND ORDER


This matter is before the Court on the Motion [DE #153] of Defendant Jose Ramon Ugarte-Maldonado, pro se, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence imposed in this action on July 29, 2005. The matter was referred to the Magistrate Judge who, on May 4, 2007, issued Proposed Findings of Fact and Recommendation that the motion should be dismissed as time-barred [DE # 157]. No objections were filed, and the time for filing same has passed.

Defendant was indicted, along with five co-defendants, for conspiring to distribute methamphetamine, for distributing cocaine, and for possession of an unlawful identification document. After initially pleading not guilty, Defendant entered into a plea agreement and pled guilty to the charges involving methamphetamine. On July 29, 2005, he was sentenced to concurrent 105-month sentences and judgment was entered against him. He did not file a direct appeal; thus, his conviction became final ten days after judgment was entered. United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002). Defendant's § 2255 Motion was not filed until November 3, 2006, more than one year after his judgment became final. Accordingly, the Court agrees with the Magistrate Judge's proposed findings of fact and recommendation that the action be dismissed as time-barred.

A certificate of appealability should only be issued if "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When denials of relief are based on procedural defaults, a district court still should issue a certificate of appealability if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 478 (2000). In the present case, the Court determines that Defendant has not presented a close call or one which is "debatable." Therefore, a certificate of appealability will not issue.

The Court, being otherwise fully and sufficiently advised, HEREBY ORDERS:

1. The Magistrate Judge's proposed findings of fact and recommendation [DE #157] are ADOPTED as and for the opinion of the Court;
2. Defendant's motion to vacate, correct or set aside his sentence [DE #153] is DENIED;
3. The Motion of the United States to dismiss [DE #155] is GRANTED; and
4. Judgment will be entered contemporaneously with this opinion and order in favor of the United States.