Garcia v. United States of America
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).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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
The Court is aware that mail addressed to Petitioner Carlos Garcia has been
returned because he is no longer at the address the Court has on file.1 (ECF No. 10.)
When Garcia filed this habeas petition under 28 U.S.C. § 2255, he was informed that
he must notify the Court within 15 days of any address change: “If mail directed to
your address of record is returned undelivered by the Post Office, and the Court and
opposing counsel are not notified in writing within  days thereafter of your current
address, the Court may dismiss the case with or without prejudice for want of
prosecution.” (Letter re Filing H/C Pet. or 28/255 Mot., ECF No. 1.) The Court is
therefore within its right to dismiss Garcia’s Petition for lack of prosecution.
Nevertheless, review of Garcia’s Petition and the Government’s Opposition
reveals that the Petition should also be dismissed on the merits. Garcia argues that
this Court impermissibly applied a 16-level sentencing enhancement for removal after
The only address the Court has for Garcia is P.O. Box 305, Jonesville, Virginia 24263.
conviction of a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). (Pet. 5–6.)
But Garcia specifically stipulated to this enhancement in his Plea Agreement. United
States v. Garcia, No. 2:10-cr-425-ODW-1, ECF No. 11 (“Plea Agreement”) ¶ 11
(C.D. Cal. filed Apr. 28, 2010). He also waived “any right to bring a post-conviction
collateral attack on [his] conviction or sentence,” except in limited circumstances not
applicable here. (Plea Agreement ¶ 19.) And even had he not so stipulated, Garcia’s
failure to raise his issue with the enhancement first before this Court or on direct
appeal to the Ninth Circuit constitutes a procedural default of that claim.2 Bousley v.
United States, 523 U.S. 614, 622 (1998).
“Where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either ‘cause’ and ‘actual
prejudice,’ or that he is ‘actually innocent.’” Id. (citations omitted). Garcia has made
no such showing.
Carlos Garcia’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 is
therefore DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
April 25, 2013
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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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