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Cortez-Castro v. Smith

United States District Court, E.D. Virginia, Norfolk Division

December 22, 2017

ERNESTO CORTES-CASTRO, #94860-004, Petitioner,
v.
THOMAS B. SMITH, Warden, [1] Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Robert J. Krask United States Magistrate Judge

         This matter was brought by petition for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. It was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

         The undersigned recommends that the petition for a writ of habeas corpus be construed as a motion pursuant to 28 U.S.C. § 2255, and DENIED and DISMISSED WITHOUT PREJUDICE because this Court has no jurisdiction over a section 2255 motion.

         I. STATEMENT OF THE CASE

         A. Background

         Petitioner Ernesto Cortes-Castro is a federal prisoner convicted and sentenced in the United States District Court for the Southern District of Florida (the "trial court"), and presently confined at the Federal Correctional Institution in Ashland, Kentucky.[2]

         In a second superseding indictment filed in the Southern District of Florida on June 7, 2011, petitioner was charged with conspiracy to commit sex trafficking, sex trafficking by fraud or force, and transporting for prostitution in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1), and 1594(c). United States v. Velasquez, No. 1:11cr20005 (S.D. Fla. June 7, 2011); ECF No. 74 ("Trial Court ECF"). On August 10, 2011, petitioner entered into a plea agreement under which he pled guilty to the first offense in exchange for the dismissal of all the remaining charges. Trial Court ECF Nos. 133-35. On November 15, 2011, petitioner was sentenced to a prison term of 180 months. Trial Court ECF No. 162.

         Petitioner appealed to the United States Court of Appeals for the Eleventh Circuit on November 18, 2011, challenging the sentence and restitution order. United States v. Cortes-Castro, 511 Fed.Appx. 942 (11th Cir. 2013); Trial Court ECF No. 165.[3] The Eleventh Circuit affirmed the district court's judgment on March 7, 2013. Id.

         On December 18, 2013, petitioner filed a pro se motion to vacate, set aside, or correct a sentence by a person in federal custody under 28 U.S.C. § 2255 with the trial court, challenging counsel's effectiveness and the lawfulness of his sentence. Cortes-Castro v. United States, No. 1:13cv24543 (S.D. Fla. Dec. 18, 2013). The motion was denied on the merits on October 7, 2014. Cortes-Castro v. United States, No. 1:13cv24543 (S.D. Fla. Oct. 7, 2014). The Eleventh Circuit denied petitioner's motion for a certificate of appealability because he failed to show that "reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issues that he seeks to raise." Cortes-Castro v. United States, No. 14-14787-D (11th Cir. Mar. 4, 2015) (citing 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000)).

         On May 12, 2015, petitioner filed a second motion pursuant to 28 U.S.C. § 2255, in the trial court. Cortes-Castro v. United States, No. 1:15cv21815 (S.D. Fla. May 12, 2015). The motion was denied as an unauthorized successive motion because petitioner failed to obtain the certification required by 18 U.S.C. § 2244(b)(3)(A) from the Eleventh Circuit. Cortes-Castro v. United States, No. 1:15cv21815 (S.D. Fla. May 26, 2015), report and recommendation adopted (S.D. Fla. Sept. 30, 2015).

         Petitioner has filed at least three applications for leave to file a successive motion to vacate, which the Eleventh Circuit denied on July 13, 2015, Cortes-Castro v. United States, No. 15-12819-B (11th Cir. Jul. 13, 2015); March 4, 2016, Cortes-Castro v. United States, No. 16-10474-A (11th Cir. Mar. 4, 2016); and August 15, 2016, Cortes-Castro v. United States, No. 16-15023-C (11th Cir. Aug. 15, 2016).

         On September 7, 2016, petitioner filed his petition pursuant to 28 U.S.C. § 2241 in this court. ECF No. 1. On March 10, 2017, petitioner filed a motion to supplement, in which he provides additional information related to his claims, ECF No. 6, and the Court granted the motion on March 22, 2017. ECF No. 7. On April 19, 2017, the United States filed a response to petitioner's motion and supplement. ECF No. 8. Petitioner filed a reply on May 5, 2017. ECF No. 9.

         B. Grounds Alleged

         The petition advances the following six grounds for relief:

(1) the government's knowing use of false evidence to produce the presentence report, ECF No. 1 at 1-6;
(2) the indictment "failed to state an offense, and failed to apprise petitioner of the charge" upon which he was ...

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