Garcia v. United States of America

Filing 11

ORDER DISMISSING PETITION UNDER 28 U.S.C. § 2255 with prejudice 1 by Judge Otis D. Wright, II. (Made JS-6. Case Terminated.) (lc) Modified on 4/25/2013 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CARLOS GARCIA,

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v.

Petitioner,

UNITED STATES OF AMERICA,

Case No. 2:12-cv-01878-ODW√
Case No. 2:10-cr-00425-ODW
ORDER DISMISSING PETITION
UNDER 28 U.S.C. § 2255

Respondent.

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The Court is aware that mail addressed to Petitioner Carlos Garcia has been

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returned because he is no longer at the address the Court has on file.1 (ECF No. 10.)

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When Garcia filed this habeas petition under 28 U.S.C. § 2255, he was informed that

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he must notify the Court within 15 days of any address change: “If mail directed to

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your address of record is returned undelivered by the Post Office, and the Court and

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opposing counsel are not notified in writing within [15] days thereafter of your current

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address, the Court may dismiss the case with or without prejudice for want of

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prosecution.” (Letter re Filing H/C Pet. or 28/255 Mot., ECF No. 1.) The Court is

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therefore within its right to dismiss Garcia’s Petition for lack of prosecution.

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Nevertheless, review of Garcia’s Petition and the Government’s Opposition

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reveals that the Petition should also be dismissed on the merits. Garcia argues that

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this Court impermissibly applied a 16-level sentencing enhancement for removal after

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The only address the Court has for Garcia is P.O. Box 305, Jonesville, Virginia 24263.

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conviction of a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). (Pet. 5–6.)

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But Garcia specifically stipulated to this enhancement in his Plea Agreement. United

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States v. Garcia, No. 2:10-cr-425-ODW-1, ECF No. 11 (“Plea Agreement”) ¶ 11

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(C.D. Cal. filed Apr. 28, 2010). He also waived “any right to bring a post-conviction

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collateral attack on [his] conviction or sentence,” except in limited circumstances not

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applicable here. (Plea Agreement ¶ 19.) And even had he not so stipulated, Garcia’s

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failure to raise his issue with the enhancement first before this Court or on direct

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appeal to the Ninth Circuit constitutes a procedural default of that claim.2 Bousley v.

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United States, 523 U.S. 614, 622 (1998).

“Where a defendant has procedurally

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defaulted a claim by failing to raise it on direct review, the claim may be raised in

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habeas only if the defendant can first demonstrate either ‘cause’ and ‘actual

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prejudice,’ or that he is ‘actually innocent.’” Id. (citations omitted). Garcia has made

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no such showing.
Carlos Garcia’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 is

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therefore DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.

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April 25, 2013

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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While Garcia did file a notice of appeal in his criminal case, he subsequently moved for voluntary
dismissal of the appeal. Garcia, No. 2:10-cr-425-ODW-1, ECF Nos. 35, 49.

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