Reyes v. Brown et al
Filing
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ORDER DENYING 10 MOTIONS FOR RECONSIDERATION; DENYING AS MOOT REQUEST FOR EXTENSION OF TIME TO SEEK LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Claudia Wilken on 10/20/2011. (ndr, COURT STAFF) (Filed on 10/20/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALFONSO CERVANTES REYES,
Nos. C 10-05643 CW (PR)
C 10-05795 CW (PR)
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Petitioner,
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v.
ORDER DENYING MOTIONS FOR
RECONSIDERATION; DENYING AS
MOOT REQUEST FOR EXTENSION OF
TIME TO SEEK LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
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KAMALA HARRIS, California
Attorney General, J.C. HOLLAND,
Warden, FCI-Ashland,
Respondents.
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United States District Court
For the Northern District of California
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BACKGROUND
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Petitioner filed the above two pro se petitions for a writ of
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habeas corpus under 28 U.S.C. § 2254 challenging expired
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convictions and sentences imposed in the Santa Clara County
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Superior Court in 2005.
On June 20, 2011, the Court dismissed the
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petitions on the ground that it lacked jurisdiction to consider
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Petitioner's challenges to his state convictions because Petitioner
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no longer is in custody under either conviction.
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Further, because it appeared that Petitioner, who currently is
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incarcerated at the Federal Correctional Institution in Ashland,
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Kentucky, is facing deportation proceedings, the Court found that
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he is not in custody under the state convictions as a result of the
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immigration consequences of those convictions.
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Additionally, the Court determined that Petitioner cannot
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challenge the validity of his federal immigration custody by
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attacking his state convictions in a habeas petition under 28
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U.S.C. § 2241.
Rather, the Court explained, until a habeas
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petitioner has successfully overturned his state conviction in an
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action against the State, federal immigration authorities are
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entitled to rely on the conviction as a basis for custody and
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eventual deportation.
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Based on the above, the Court dismissed the petitions and
denied a certificate of appealability.
Petitioner then filed a motion for reconsideration of the
Order of dismissal in each of his petitions, and also filed a
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request for a certificate of appealability from the Ninth Circuit
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Court of Appeals.
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Petitioner's request to proceed in forma pauperis on appeal.1
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United States District Court
For the Northern District of California
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Ninth Circuit has not ruled yet on Petitioner's request for a
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certificate of appealability.
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The
For the reasons discussed below, Petitioner's motions for
reconsideration will be denied.
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On September 23, 2011, this Court granted
DISCUSSION
Petitioner moves for reconsideration on the following grounds:
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(1) the Court erroneously understood that Petitioner is in federal
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custody facing deportation proceedings when, in fact, Petitioner is
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in federal custody serving a sixteen-year sentence that was
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enhanced by the state convictions; (2) the Court was not aware that
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Petitioner had filed state habeas petitions attacking his state
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convictions while he was in custody under those convictions;
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(3) even though he was not in state custody when he filed the
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instant petitions, he should be excepted from application of the
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in-custody rule because the state courts refused, without
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justification, to rule on the merits of his petitions.
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Petitioner has filed a motion requesting an extension of time
to apply for leave to proceed in forma pauperis on appeal. Because
the Court already granted Petitioner leave to proceed in forma
pauperis on appeal, the motion is DENIED as moot.
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Additionally, the Court has obtained the following information
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relevant to Petitioner's motion which Petitioner did not provide in
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his moving papers: (1) the federal sentence he is serving was
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imposed after Petitioner, in 2008, plead guilty in this district in
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United States of America v. Alfonso Cervantes Reyes, Case No. CR
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05-00516 JF; (2) Petitioner currently is pursuing an appeal of his
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guilty plea and the sentence in that case; (3) Petitioner argues in
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the appeal that his federal sentence should not have been enhanced
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by the two state convictions at issue in the present petitions
United States District Court
For the Northern District of California
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because the convictions are constitutionally infirm; (4) in
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response to the appeal, the Government has argued that Petitioner
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waived his right to appeal when he plead guilty and that he must,
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instead, proceed by way of a motion to vacate under 28 U.S.C.
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§ 2255; (5) Petitioner's reply to the Government is due on November
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7, 2011.
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Case No. 10-10369.
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See United States of America v. Alfonso Cervantes Reyes,
Petitioner is correct that the newly-asserted facts that
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he is in federal custody serving a federal sentence rather than
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facing deportation proceedings, and that he challenged his state
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convictions when he was in state custody, change the Court's
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analysis concerning his challenge to his state convictions in the
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present petitions.
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Court's conclusion that the petitions must be dismissed remains the
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same.
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For the reasons discussed below, however, the
In the present petitions, Petitioner brings a direct challenge
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under 28 U.S.C. § 2254 to his expired state court convictions.
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the Court previously determined, Petitioner cannot directly
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challenge the validity of those convictions because they have
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As
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expired and, therefore, Petitioner no longer is "in custody" under
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those convictions.
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(per curiam).
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meet the in-custody requirement because the state courts improperly
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refused to rule on the merits of his state habeas challenges to the
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convictions.
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Supreme Court case law that discusses the in-custody requirement
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for challenges to expired convictions used to enhance later
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sentences.
United States District Court
For the Northern District of California
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See Maleng v. Cook, 490 U.S. 443, 492 (1989)
In the instant motions, Petitioner argues he does
In so doing, Petitioner cites to United States
Specifically, the Supreme Court has held that a petitioner
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challenging in habeas corpus the validity of an expired conviction
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which he maintains is being used as a predicate or enhancement to
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his current confinement or sentence satisfies the custody
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requirement, even if he no longer is in custody on the prior
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conviction.
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394, 401-02 (2001).
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clarified that, regardless of whether the custody requirement is
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met, concerns of easy administration and interest in promoting the
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finality of state court criminal judgments dictate that the expired
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conviction itself cannot be challenged in an attack upon the later
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sentence it was used to enhance.
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U.S. 374, 379-83 (2001) (prior state conviction cannot be
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challenged in § 2255 motion challenging current federal sentence
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enhanced by prior conviction); Coss, 532 U.S. at 402-03 (prior
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state conviction cannot be challenged in § 2254 petition
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challenging current state sentence enhanced by prior conviction).
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//
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//
See Lackawanna County Dist. Attorney v. Coss, 532 U.S.
Importantly, however, the Supreme Court has
See Daniels v. United States, 532
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As explained by the Supreme Court:
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If, however, a prior conviction used to enhance a federal
sentence is no longer open to direct or collateral attack
in its own right because the defendant failed to pursue
those remedies while they were available (or because the
defendant did so unsuccessfully), then that defendant is
without recourse. The presumption of validity that
attached to the prior conviction at the time of
sentencing is conclusive, and the defendant may not
collaterally attack his prior conviction through a motion
under § 2255.
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Daniels, 532 U.S. at 382; see Coss, 532 U.S. at 403-04 (accord,
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discussing collateral attack on expired conviction in § 2254
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petition).
The only exception to this rule is for a claim that the
United States District Court
For the Northern District of California
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prior conviction was unconstitutional because there was a failure
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to appoint counsel in violation of the Sixth Amendment right to
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counsel as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963).
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See Daniels, 532 U.S. at 382; Coss, 532 U.S. at 404.
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The Supreme Court also recognized that "there may be rare
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cases in which no channel of review was actually available to a
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defendant with respect to a prior conviction, due to no fault of
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his own."
Daniels, 532 U.S. at 383; see Coss, 532 U.S. at 404
(accord).
In neither the Daniels nor Coss case, however, did the
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circumstances require the Supreme Court to determine whether, or
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under what circumstances, a petitioner might be able to challenge
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on such grounds the validity of an expired conviction used to
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enhance a current sentence.
See Daniels, 532 U.S. at 383; Coss,
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532 U.S. at 405-06.
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Petitioner relies upon the Supreme Court's statement
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concerning a possible "rare cases" exception to argue that
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reconsideration should be granted to allow him to show that he
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satisfies the in-custody requirement to challenge his expired
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convictions in the present § 2254 petitions because the state
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courts improperly failed to consider his state habeas challenges to
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those convictions while Petitioner still was in custody on them.
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This argument is unavailing for two reasons.
First,
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Petitioner can meet the in-custody requirement to challenge his
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expired state convictions only if he is challenging their use to
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enhance his current federal sentence.
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petitions Petitioner is not challenging the enhancement of his
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federal sentence by the alleged invalid state convictions, nor can
As noted, in the instant
United States District Court
For the Northern District of California
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he do so.
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a direct or collateral challenge to his federal sentence.
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Accordingly, Petitioner must bring any such challenge in
Second, the "rare cases" exception that might allow review of
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an expired state conviction because the state courts improperly
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rejected a challenge to that conviction does not go to the question
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of custody.
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Coss, such exception is relevant to the question of the proper
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weight to be given to the state court criminal judgment relied upon
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to enhance the current sentence.
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Petitioner argues that the state courts improperly rejected his
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state habeas challenges to his expired convictions, Petitioner must
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raise such argument in the court reviewing his challenge to his
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federal sentence.
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Rather, as the Supreme Court explained in Daniels and
Accordingly, to the extent
Based on the above, the Court concludes that Petitioner is not
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entitled to reconsideration because he does not meet the custody
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requirement for challenging his expired state convictions in § 2254
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petitions that seek only to invalidate those convictions.
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Petitioner may be able to meet the custody requirement by
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challenging the use of the expired state convictions to enhance his
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Instead,
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current federal sentence, which he must do by way of a direct or
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collateral challenge to that sentence.
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Accordingly, the motions for reconsideration are DENIED.
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This Order terminates Docket no. 10 (Motion for
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Reconsideration) in Case No. 10-05643 CW (PR), and Docket Nos. 10
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(Motion for Reconsideration) and 17 (Motion for Extension of Time
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to File In Forma Pauperis Application) in Case No. 10-05795.
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IT IS SO ORDERED.
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Dated:
10/20/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
United States District Court
For the Northern District of California
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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ALFONSO C REYES,
Case Number: CV10-05643 CW
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Plaintiff,
CERTIFICATE OF SERVICE
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v.
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JERRY BROWN et al,
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Defendant.
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United States District Court
For the Northern District of California
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 20, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.
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Alfonso Cervantes Reyes 10337-111
Federal Correctional Institution - Ashland
P.O. Box 6001
Ashland, KY 41105
Dated: October 20, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk
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