Luna-Lara v. USA

Filing 34

ORDER - IT IS ORDERED a status hearing is set for December 17, 2019, at 10:00 a.m. No later than November 25, 2019, the parties shall file a joint status report explaining how they wish to proceed and whether Petitioner's presence at the status hearing is necessary. (See document for complete details). Signed by Senior Judge Roslyn O Silver on 11/15/19. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Francis Luna-Lara,
Petitioner,

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No. CV-16-01532-PHX-ROS
CR-03-01097-PHX-ROS
ORDER

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v.

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United States of America,

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Respondent.

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On October 25, 2019, Magistrate Judge Michelle H. Burns issued a Report and

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Recommendation (“R&R”) recommending the Amended Motion to Vacate, Set Aside, or

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Correct Sentence Under 28 U.S.C. § 2255 be granted, Petitioner’s “conviction and sentence

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be vacated, and the original charges in the Indictment be reinstated.” (Doc. 33 at 5). No

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objections were filed. Based on the lack of objections, the R&R will be summarily adopted.

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Before doing so, however, the Court will hold a status hearing.

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As explained in the R&R, Petitioner’s plea agreement provided that if his guilty plea

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was “rejected, withdrawn, vacated, or reversed . . . any charges that have been dismissed

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. . . will be automatically reinstated.” (Doc. 33 at 3). Thus, when the Court adopts the

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R&R and vacates Petitioner’s conviction and sentence, the previously-dismissed charges

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will automatically be reinstated. But vacating Petitioner’s conviction and sentence might

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require immediate proceedings to determine if he should remain in custody. Moreover,

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reinstating the previous charges might implicate the Speedy Trial Act. Therefore, before

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formally adopting the R&R and granting the motion to vacate, the Court will hold a status

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hearing. Prior to that hearing, the parties will be required to file a joint status report stating

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how they wish to proceed after the Court adopts the R&R. That status report should also

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indicate whether Petitioner’s presence is necessary for the status hearing.

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Accordingly,

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IT IS ORDERED a status hearing is set for December 17, 2019, at 10:00 a.m. No

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later than November 25, 2019, the parties shall file a joint status report explaining how

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they wish to proceed and whether Petitioner’s presence at the status hearing is necessary.

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Dated this 15th day of November, 2019.

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Honorable Roslyn O. Silver
Senior United States District Judge

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