Heredia-Oliva v. USA

Filing 2

ORDER; Movant's 8/4/08 Letter is denied; Movant's 8/25/08 Letter is granted to the extent this Order provides Movant with the status of this closed case, the criminal case and the civil action must remain closed, re: letters filed in CR 07-544-TUC-SMM. Signed by Judge Stephen M McNamee on 9/17/08. (REW, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

MDR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Abraham Heredia-Oliva, Defendant/Movant.

) ) ) ) ) ) ) ) ) ) )

No. CR 07-544-TUC-SMM No. CV 08-341-TUC-SMM ORDER

I.

Background On June 4, 2008, Movant Abraham Heredia-Oliva, who is confined in the Corrections

Corporation of America's Central Arizona Detention Center in Florence, Arizona, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. In a June 9, 2008 Order, the Court summarily dismissed the Motion, concluding that Movant had waived the right to file a § 2255 Motion. The Clerk of Court entered Judgment accordingly. II. August 2008 Letters A. August 4, 2008 Letter (Doc. #48)

On August 4, 2008, Movant filed a letter and "attached paperwork" and asked the Court to "read it slow and trying to comprehend the meaning and allegations" and inform Movant whether the Court considered the information prior to sentencing. Movant contends that, if the Court did not consider the information, then Movant and his lawyer "were on a different page." The Court will deny Movant's request. Movant was present at sentencing

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and was aware of the information presented to the Court. To the extent Movant seeks to have the Court provide an opinion as to whether Movant's attorney provided effective assistance of counsel, the Court does not provide advisory opinions. See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986). Finally, nothing in the information Movant presents in his letter and the attached paperwork provides any basis for the Court to conclude that Movant's plea was involuntarily or that Movant did not expressly waive issues regarding the imposition of sentence and expressly waive the right to bring a § 2255 motion. B. August 25, 2008 Letter (Doc. #49)

On August 25, 2008, Movant filed another letter. In this letter, Movant requested that the Court provided him with the status of this case. The Court will grant that request to the extent that this Order provides Movant with the status of this closed case. IT IS HEREBY ORDERED that: (1) (2) Movant's August 4, 2008 Letter (Doc. #48) is denied. Movant's August 25, 2008 Letter (Doc. #49) is granted to the extent this Order

provides Movant with the status of this closed case. (3) This case and the civil action opened in connection with the § 2255 Motion

(CV 08-341-TUC-SMM) must remain closed. DATED this 17th day of September, 2008.

-2-