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November 27, 2002


The opinion of the court was delivered by: Berman, District Judge.


I. Introduction

On or about May 28, 2002, Petitioner Raymond Garcia ("Petitioner" or "Garcia"), appearing pro se, filed a petition to "vacate, set aside, or correct" his current sentence (in S1 00 Cr. 1138), pursuant to 28 U.S.C. § 2255 ("Petitioner's Motion").*fn1 Petitioner states, among other things, that his trial counsel "was ineffective for failing to file a timely Notice of Appeal" and "for failing to obtain Appellate review of the Sentencing Court's denial of a downward departure for diminish[ed] [c]apacity." Memorandum of Law in Support of Post Conviction Motion Pursuant to 28 U.S.C. § 2255 ("Petitioner's Memorandum"), at 2.

On or about September 11, 2002, United States Magistrate Judge Douglas F. Eaton, to whom this matter had been referred, issued a report and recommendation ("Report"), recommending that Petitioner's Motion be denied. Report at 1. The Magistrate concluded correctly that Petitioner's sentence was in accordance with applicable law, including the United States Sentencing Guidelines ("U.S.S.G."), and that Petitioner had waived his right to appeal or otherwise litigate his sentence in the Plea Agreement he signed on or about April 11, 2001 ("Plea Agreement"). Id. at 9.

II. Standard of Review

A district court evaluating a Magistrate's report may adopt those portions of the report to which no "specific, written objection" is made, as long as those sections are not clearly erroneous. Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "Where a party makes a `specific written objection' within `[ten] days after being served with a copy of the [magistrate judge's] recommended disposition,' however, the district court is required to make a de novo determination regarding those parts of the report." Cespedes v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997) (quoting United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). Where, as here, the petitioner is proceeding pro se, "leniency is generally accorded." Bey v. Human Resources Admin., 1999 WL 31122, at *2 (E.D.N.Y. Jan. 12 1999).

III. Analysis

The facts as set forth in the Report are incorporated herein by reference.

Although no objections have been received, the Court has, in fact, conducted a de novo review of the Report, the underlying record herein, as well as appropriate legal authorities and finds that the Report is supported by the record, is in conformity with the law, and is not (clearly) erroneous. See Pizarro v. Bartlett 776 F. Supp. 815, 817 (S.D.N.Y. 1991).

(i) Petitioner's Sentence

On April 11, 2001, Petitioner pled guilty to a one-count Superseding Information charging him with a violation of 21 U.S.C. § 812, 841(a) and 81(b)(1)(c), "in connection with his distribution, and possession with intent to distribute, of mixtures and substances containing a detectable amount of cocaine base on or about April 18, 2000." Plea Agreement at 1; April 11, 2001 Hearing Transcript ("4/11/01 Tr."), at 23-24. Based upon an offense level of 32 and a criminal history category IV and pursuant to U.S.S.G. § 6B1.4, Petitioner's sentencing guidelines range was calculated by the Court to be 151 to 188 months imprisonment. November 5, 2001 Hearing Transcript ("11/5/01 Tr.") at 19. The Government and Petitioner had "stipulated" to a sentencing guidelines range of 121 to 151 months in the Plea Agreement. The Plea Agreement also reserved Petitioner's right to move for a downward departure based upon "extraordinary rehabilitation pursuant to U.S.S.G. § 5K2.0." Id. at 4.*fn2

(ii) Downward Departure Application

At Petitioner's sentencing on November 11, 2001, Petitioner did, in fact, apply for a downward departure for "extraordinary rehabilitation." 11/5/01 Tr. at 8-11. The Government challenged the application, citing several incidents of post-plea misconduct by the Petitioner, including, among other things, his fleeing from law enforcement officers and "leaving a pit bull in his wake standing guard." Id. at 13. Concluding that "under anybody's definition of the word `rehabilitation,' there is a lot more that has to be accomplished," id. at 19, the Court found that Petitioner's behavior did not constitute extraordinary rehabilitation, because it included, among other things, testing positive for drugs "on more than one occasion," id. at 17, failing to attend required drug therapy sessions, id., and evading and attempting to evade arrest. Id. at 18. The Court also considered other relevant factors and authorities (including Petitioner's mental and emotional state) and, in its discretion, denied a departure based upon the "totality of the circumstances." Id. at 16.*fn3 The Court stated that, although it took "very seriously into account Mr. Garcia's childhood, including his mother's addiction and the fact that he was raised in foster care and . . . was incarcerated as a juvenile," id., it would not exercise its discretion and depart from the guideline range ...

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