Ailemen v. United States Of America

Filing 58

ORDER by Judge Ronald M. Whyte Denying 53 Motion for Reconsideration ; Denying 54 Motion for Discovery; Denying 55 Motion for Discovery ; Granting 56 Motion for Certificate of Appealability. (jg, COURT STAFF) (Filed on 3/6/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. PIUS AILEMEN, Defendant/Petitioner. UNITED STATES OF AMERICA, Plaintiff/Respondent, No. C-04-0823 RMW Related to: CR-94-0003 ORDER DENYING: PETITIONER'S (1) MOTION FOR RECONSIDERATION OF DENIAL OF 28 U.S.C. § 2255 MOTION; AND (2) EMERGENCY MOTION FOR DISCOVERY; ORDER GRANTING CERTIFICATE OF APPEALABILITY [Re Docket Nos. 53, 54, 55 and 56] Petitioner Pius Ailemen moves for reconsideration of the court's order of December 30, 2008 denying his petition pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his federal criminal conviction and sentence. Petitioner also moves for emergency discovery. The court has considered the moving papers including the supplement to the motion for reconsideration. The motions are denied. The motion for reconsideration essentially reargues the points made in the original motion. Petitioner obviously put a great deal of time and effort into his original motion and his request for reconsideration. However, the court does not find that petitioner has shown he is entitled to relief or that an evidentiary hearing is necessary. The court does hereby issue a certificate of appealability on the some of the issues raised by petitioner's contention that he was deprived of his right to effective assistance of trial counsel.
ORDER DENYING: PETITIONER'S (1) MOTION FOR RECONSIDERATION OF DENIAL OF 28 U.S.C. § 2255 MOTION; AND (2) EMERGENCY MOTION FOR DISCOVERY; ORDER GRANTING CERTIFICATE OF APPEALABILITY C-04-0823 RMW RELATED TO CR-94-0003 CRB

*E-FILED - 3/6/09*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Specifically, the court grants a certificate with respect to the issue of whether he was denied effective representation based upon his contentions that: (a) counsel deprived him of his right to testify; (b) counsel made a promise to the jury in their opening statement that they failed to support by evidence; and (c) the hostility between defense counsel themselves and between them and the court resulted in prejudice to defendant. A certificate is denied as to all other issues. Petitioner's emergency discovery motion seeks discovery of the informant status of U.S. Congressman Jesse Jackson, Jr. who was called as a witness on behalf of the defense. Petitioner claims he learned from reports in connection with the investigation of former Illinois Governor Blagjevich that Jackson has been a government informant for ten years. Petitioner contends that the prosecution and judge in his case managed and controlled Jackson. Therefore, he wants produced all information about Jackson's informant status. Petitioner's motion is based upon speculation. Further, petitioner does not explain how the alleged management and control by the prosecution and judge adversely affected Jackson's testimony such that it prejudiced him. The motion is denied. DATED: 3/5/09

RONALD M. WHYTE United States District Judge

ORDER DENYING: PETITIONER'S (1) MOTION FOR RECONSIDERATION OF DENIAL OF 28 U.S.C. § 2255 MOTION; AND (2) EMERGENCY MOTION FOR DISCOVERY; ORDER GRANTING CERTIFICATE OF APPEALABILITY C-04-0823 RMW RELATED TO CR-94-0003 CRB 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Notice of this document has been electronically sent to: Counsel for Plaintiffs: Pius Ailemen 84447-001 B Federal Corrections Institute P.O. Box 1000 Sandstone, MN 55072 Counsel for Defendants: Mark L. Krotoski Timothy J. Lucey Eumi L. Choi Joseph P. Russoniello [e-mail] [e-mail] [e-mail] [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated: 3/6/09

/s/ JG Chambers of Judge Whyte

ORDER DENYING: PETITIONER'S (1) MOTION FOR RECONSIDERATION OF DENIAL OF 28 U.S.C. § 2255 MOTION; AND (2) EMERGENCY MOTION FOR DISCOVERY; ORDER GRANTING CERTIFICATE OF APPEALABILITY C-04-0823 RMW RELATED TO CR-94-0003 CRB 3