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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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARLOS GARCIA, 12 13 14 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. 15 16 The Court is aware that mail addressed to Petitioner Carlos Garcia has been 17 returned because he is no longer at the address the Court has on file.1 (ECF No. 10.) 18 When Garcia filed this habeas petition under 28 U.S.C. § 2255, he was informed that 19 he must notify the Court within 15 days of any address change: “If mail directed to 20 your address of record is returned undelivered by the Post Office, and the Court and 21 opposing counsel are not notified in writing within [15] days thereafter of your current 22 address, the Court may dismiss the case with or without prejudice for want of 23 prosecution.” (Letter re Filing H/C Pet. or 28/255 Mot., ECF No. 1.) The Court is 24 therefore within its right to dismiss Garcia’s Petition for lack of prosecution. 25 Nevertheless, review of Garcia’s Petition and the Government’s Opposition 26 reveals that the Petition should also be dismissed on the merits. Garcia argues that 27 this Court impermissibly applied a 16-level sentencing enhancement for removal after 28 1 The only address the Court has for Garcia is P.O. Box 305, Jonesville, Virginia 24263. 1 conviction of a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). (Pet. 5–6.) 2 But Garcia specifically stipulated to this enhancement in his Plea Agreement. United 3 States v. Garcia, No. 2:10-cr-425-ODW-1, ECF No. 11 (“Plea Agreement”) ¶ 11 4 (C.D. Cal. filed Apr. 28, 2010). He also waived “any right to bring a post-conviction 5 collateral attack on [his] conviction or sentence,” except in limited circumstances not 6 applicable here. (Plea Agreement ¶ 19.) And even had he not so stipulated, Garcia’s 7 failure to raise his issue with the enhancement first before this Court or on direct 8 appeal to the Ninth Circuit constitutes a procedural default of that claim.2 Bousley v. 9 United States, 523 U.S. 614, 622 (1998). “Where a defendant has procedurally 10 defaulted a claim by failing to raise it on direct review, the claim may be raised in 11 habeas only if the defendant can first demonstrate either ‘cause’ and ‘actual 12 prejudice,’ or that he is ‘actually innocent.’” Id. (citations omitted). Garcia has made 13 no such showing. Carlos Garcia’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 is 14 15 therefore DISMISSED WITH PREJUDICE. 16 17 IT IS SO ORDERED. 18 April 25, 2013 19 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2 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. 2

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