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Prieto v. United States

United States District Court, E.D. Texas, Sherman Division

March 28, 2017

UNITED STATES OF AMERICA Criminal No. 4:10CR169(1)



         The above-entitled and numbered civil action was referred to United States Magistrate Judge Christine A. Nowak. The Report and Recommendation of the Magistrate Judge (Dkt. 32), which contains proposed findings of fact and recommendations for the disposition of such action, has been presented for consideration. The Magistrate Judge concluded that Prieto fails to carry his burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984), and accordingly, his ineffective assistance of counsel claim fails. The Report recommends that Prieto's Motion to Vacate, Set Aside, or Correct Sentence be denied and the case dismissed with prejudice. Prieto has filed written Objections (Dkt. 33). Having made a de novo review of the Objections, the Court concludes that the findings and conclusions of the Magistrate Judge are correct, and adopts the same as the findings and conclusions of the Court.

         In his Objections, Prieto maintains he is entitled to relief under § 2255 because he received ineffective assistance of counsel during the plea bargaining process. He objects specifically to the following four (4) of the Magistrate Judge's findings of fact:

(1) the Government's witnesses are more credible than Prieto (Dkt. 33 at 1-7);
(2) Prieto was advised in terms he could understand that, by refusing the Government's plea offers, he faced a life sentence should he lose at trial (id. at 7-8);
(3) Prieto was given sufficient advice of the strengths and weaknesses of the Government's case to make an informed decision regarding whether to accept a plea bargain or proceed to trial (id. at 8-9); and
(4) the record does not establish that Prieto would have accepted any of the Government's plea offers (id. at 9-10).

         Each of the disputed findings of fact rests on the Magistrate Judge's determination of the credibility of the witnesses presented at the evidentiary hearing. Thus, at the heart of each of Prieto's objections is a contention that his testimony at the evidentiary hearing, his affidavit, and the assertions in his pleadings are more credible than contrary assertions of fact by the Government's witnesses. Prieto asks the District Court to reconsider the evidence, reject the Magistrate Judge's credibility determination, and conclude he is more credible than the Government's witnesses and/or evidence.

         Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, ” of “dispositive” motions. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406 (1980). The statute further provides:

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. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b)(1)(C) (emphasis added). By its terms, § 636(b)(1)(C) grants the district court broad discretion to accept or reject the magistrate's findings; however, this discretion is not unlimited.

         Under the terms of the statute, the district court may accept the credibility determination of the magistrate after reviewing the record, without conducting an independent hearing. See United States v. Scribner, 832 F.3d 252, 260 (5th Cir. 2016) (vacating the district court's denial of a § 2255 motion because the decision was based on implicit rejection of the magistrate's credibility finding without a hearing; explaining that, on remand, the district court was free to accept the magistrate's credibility determination without holding a hearing, or in the alternative, reject the magistrate's determination and come to its own conclusion after a hearing); Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980) (“a district judge may accept a magistrate's findings concerning credibility and not violate due process.”); see also United States v. Marshall, 609 F.2d 152, 155 (5th Cir. 1980) (“a district judge who reviews the record of the hearing before the magistrate and adopts the magistrate's recommendations need not conduct a new hearing.”). In contrast, a district court's discretion to reject a finding of the magistrate is limited where:

(1) the finding is based on the credibility of the witnesses the magistrate heard, and (2) the finding is dispositive of an application for post-conviction relief involving the constitutional rights of a criminal defendant. In Blackburn [the Fifth Circuit] held that in such circumstances the district judge cannot reject the finding without personally hearing live testimony from the witnesses whose testimony is in issue.

Jordan v. Hargett, 34 F.3d 310, 313 (5th Cir. 1994), on reh'g en banc,53 F.3d 94 (5th Cir. 1995); see also Scribner, 832 F.3d at 259 (explaining that a district judge may not reject the credibility finding of a magistrate judge without holding a new evidentiary hearing); Garcia v. Boldin, 691 F.2d 1172, 1179 n. 13 (“Where the district judge makes material credibility choices at variance with those of the magistrate, the judge must, at least in certain cases, have a hearing at which he or she personally hears the testimony.”); Blackburn, 630 F.2d at 1110 (“If the district judge doubts the ...

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