United States v. Castro, 7:17-cr-00132

Petitioner Angel Castro was charged in a superseding indictment (Jan. 10, 2018) with false use of an SSN, aggravated identity theft, possession of a firearm by a felon, and illegal reentry as an aggravated felon; he pleaded guilty to aggravated identity theft and illegal reentry (Sept. 11, 2018) and was sentenced to 42 months (Jan. 18, 2019).
Castro did not appeal and filed a § 2255 motion (May/June 2019) claiming counsel was ineffective for failing to move to dismiss the § 1326 illegal-reentry count as time-barred by the five-year statute of limitations.
The magistrate judge issued an M&R recommending denial of the § 2255 motion and granting the government’s motion to dismiss; Castro filed objections.
The district court reviewed de novo the objections, applied Strickland/Hill ineffective-assistance standards, and evaluated when the § 1326 limitations period begins to run (it begins when the alien is "found in" the U.S.).
The indictment alleged Castro was last removed in Oct. 2009 and was found in the U.S. on or about Dec. 11, 2017; the court found no facial SOL bar and that counsel reasonably declined to raise a meritless motion; Castro’s reliance on United States v. Gunera was distinguishable.
Court adopted the M&R, denied the § 2255 motion, granted the government’s Rule 12(b)(6) motion, denied a certificate of appealability, and closed the case (Apr. 10, 2020).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not moving to dismiss the § 1326 illegal-reentry count as time-barred	Counsel should have moved to dismiss because Castro alleges earlier returns to the U.S., making the indictment (filed Jan. 2018) untimely under the 5-year statute	The indictment alleges Castro was found in the U.S. on Dec. 11, 2017 (within 5 years), so no plausible SOL defense; counsel reasonably declined to raise a meritless motion	Denied — counsel not deficient; no prejudice shown under Strickland/Hill because SOL defense lacked merit
Whether a certificate of appealability should issue	Castro implicitly contends the issues are debatable	Government argues reasonable jurists would not debate the decision	Denied — petitioner failed to make a substantial showing of the denial of a constitutional right

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance: performance and prejudice)
Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for counsel errors affecting guilty pleas)
United States v. De Leon-Ramirez, 925 F.3d 177 (4th Cir. 2019) (statute of limitations for § 1326 begins when federal authorities "find" the noncitizen in the U.S.)
United States v. Gunera, 479 F.3d 373 (5th Cir. 2007) (SOL dismissal where defendant provided true identity to federal authorities >5 years before indictment)
Orpiano v. Johnson, 687 F.2d 44 (4th Cir. 1982) (district court need not conduct de novo review for general, non-specific objections to an M&R)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for certificate of appealability)