The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 4:19-cv-10032-KMM-1
LEIMER PEREZ CASTRO,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
/
ORDER ON REPORT AND RECOMMENDATION
THIS CAUSE came before the Court upon pro se Movant Leimer Perez Castro’s
(“Movant”) Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. (“Am. Mot.”) (ECF No. 30). The Court referred the matter to the
Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and
Recommendation recommending that the Amended Motion be DENIED. (“R&R”) (ECF No. 37).
Movant did not file objections and the time to do so has passed. The matter is now ripe for review.
As set forth below, the Court ADOPTS the R&R.1
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
On May 7, 2018, Movant pled guilty to one count of conspiracy with intent to distribute
five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the
United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(b). (CR-ECF Nos. 20, 25).2
On July 9, 2018, Movant was sentenced to a total term of 168 months’ imprisonment, to be
followed by a term of five (5) years of supervised release. (CR-ECF Nos. 44, 47). On February
1 The Court adopts the R&R with the following alteration: on page eight, line seventeen, the
citation should read: “Hill v. Lockhart, 474 U.S. 52, 59 (1985).”
2 References to Movant’s criminal case, United States v. Castro, et al., 4:18-cr-10010-KMM-1,
are notated as “CR-ECF No. __”.
22, 2019, Movant filed his first Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. (ECF No 1). Movant filed several amendments thereafter,
resulting in the filing of the final Amended Motion on July 23, 2019. Am. Mot. Therein, Movant
asserts the following ineffective assistance of counsel claims: (1) counsel failed to file a pretrial
motion to dismiss based on a delay in presentment for Movant’s initial appearance; (2) counsel
failed to file a motion to suppress the field test which came back positive for drugs; (3) counsel
permitted Movant to admit, as part of the negotiated plea agreement, that he was the “master” of
the vessel he was arrested on; (4) counsel failed to object to the quantity of drugs attributable to
Movant at sentencing; and (5) counsel failed to seek a hearing or otherwise require that the
Government file a motion for reduction in sentence based on Movant’s cooperation.3 See
generally id.; Reply (ECF No. 36).
As set forth in the R&R, Magistrate Judge Reid recommends that the Motion be denied on
the merits. R&R at 18. Specifically, Magistrate Judge Reid finds that as to each of Movant’s
ineffective assistance of counsel claims, Movant fails to demonstrate deficiency or prejudice under
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Id. at 8–17. First, Magistrate Judge
Reid finds that Movant has not demonstrated that the fifteen (15) day delay between his search
and seizure on the high seas and his presentment before a magistrate judge was unreasonable. Id.
at 10–12. Second, Magistrate Judge Reid finds that Movant has not demonstrated that challenging
the nature or quantity of the drugs would have resulted in a finding that the total amount of cocaine
seized aboard the vessel was less than the amount that guided Movant’s base sentencing level—
450 kilograms, when in fact Movant agreed to be held accountable for 1,120 kilograms as part of
3 The fifth claim, that Movant’s counsel failed to seek a reduction in Movant’s sentence for his
cooperation, does not appear in the Amended Motion and is improperly raised for the first time in
Movant’s Reply (ECF No. 36). See, e.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342
(11th Cir. 2005). However, the Court nonetheless briefly discusses why this claim fails on the
merits.
his negotiated plea agreement. /d. at 12-13. Third, Magistrate Judge Reid finds that Movant
stipulated that he identified himself as the master of the vessel when law enforcement boarded the
vessel, and Movant cannot demonstrate Strickland deficiency or prejudice for counsel’s failure to
challenge Movant’s representations while aboard the vessel prior to his change of plea. /d. at 13.
Further, “Movant waived pursuit of any defenses when he entered into a knowing and voluntary
plea.” Jd. Fourth, Magistrate Judge Reid finds that Movant and his co-conspirators stipulated that
they were each accountable for the entire load seized aboard the vessel, and thus were properly
held accountable under U.S.S.G. § 1B1.3. /d. at 14. Fifth, Magistrate Judge Reid finds that nothing
in the record suggests that the Government made any representation that it would file or consider
filing a Rule 35(b) motion on Movant’s behalf, nor is there any allegation that the Government
refused to do so with an unconstitutional motive. /d. at 15-17. Finally, Magistrate Judge Reid
finds that Movant is not entitled to an evidentiary hearing in this matter and recommends that no
certificate of appealability issue, because Movant cannot meet his burden to show that reasonable
jurists could find the denial of his § 2255 motion debatable. /d. at 17-18. The Court agrees.
UPON CONSIDERATION of the Amended Motion, the R&R, the pertinent portions of
the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND
ADJUDGED that Magistrate Judge Reid’s Report and Recommendation (ECF No. 37) is
ADOPTED and Movant’s Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (ECF No. 30) is DENIED. The Clerk of Court
is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of May, 2021.
KO) aren
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
c: All counsel of record
Leimer Perez Castro
17348-104
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
Post Office Box 2000
Joint Base MDL, NJ 08640
PRO SE