United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
On April 12, 2012, petitioner Armando Ixtlilco-Hernandez, an inmate at the Federal Correctional Institution in Sandstone, Minnesota, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Docket 1). On October 18, 2013, the government moved to dismiss the petition. (Docket 28). Mr. Ixtlilco-Hernandez opposed the motion. (Docket 32). Pursuant to a standing order of March 18, 2010, the matter was referred to United States Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B). On July 14, 2014, Judge Simko issued a report recommending the court grant the government’s motion to dismiss. (Docket 33). Mr. Ixtlilco-Hernandez was granted an extension until August 29, 2014, to file objections to the report and recommendation. (Docket 36). On September 4, 2014, Mr. Ixtlilco-Hernandez filed his objections. (Docket 37). For the reasons stated below, Mr. Ixtlilco-Hernandez’s objections are overruled and the report and recommendation is adopted in full.
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may then “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).
Mr. Ixtlilco-Hernandez filed three objections to the report and recommendation. The objections are stated under the following titles:
1. Counsel’s Failure to Argue The Drug Quantity;
2. Counsel’s Failure to Argue 3553(a) Factors;
3. Family and Friend Statements; and 4. Counsel Failed to Explain The Plea Agreement in Spanish.
(Docket 37). Each of petitioner’s objections will be separately addressed.
1. COUNSEL’S FAILURE TO ARGUE THE DRUG QUANTITY
Mr. Ixtlilco-Hernandez claims the report and recommendation is in error because it improperly dismissed petitioner’s claim that his attorney failed to properly argue the drug quantity at sentencing. (Docket 37 at p. 1). Petitioner asserts he was arguing against the 500 or more grams of methamphetamine required to form the basis for conviction. Id.
Mr. Ixtlilco-Hernandez’s argument ignores that portion of the change of plea hearing during which the court focused on the factual basis statement. In the written statement signed by Mr. Ixtlilco-Hernandez, he acknowledged that “[o]ver the course of this conspiracy, the Defendant imported and sold in excess of 500 grams of methamphetamine . . . .” United States v. Ixtlilco-Hernandez, CR. 5:10-50075-01-JLV, Docket 50 at p. 2. During the change of plea hearing during which Mr. Ixtlilco-Hernandez was under oath, the court engaged him in a discussion about the factual basis statement:
THE COURT: Mr. Ixtlilco, do you remember reviewing the Statement of Factual Basis in this case with your ...