Galvan-Luna v. United States Of America

Filing 4

STIPULATION AND ORDER TO DISMISS JOSE GALVAN-LUNAS HABEAS CORPUS PETITION re 3 Stipulation. Motions terminated: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jose Bonifacio Galvan-Luna. Signed by Judge James Ware on 7/1/2009. (ecg, COURT STAFF) (Filed on 7/2/2009)

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JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney BRIAN J. STRETCH (CABN 163973) Chief, Criminal Division SHAWNA YEN (CABN 224447) Assistant United States Attorneys 150 Almaden Blvd., Suite 900 San Jose, California 95113 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JOSE GALVAN-LUNA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) ) No. CV 05-05218 JW CR 03-20029 JW STIPULATION TO DISMISS JOSE GALVAN-LUNA'S HABEAS CORPUS PETITION AND [PROPOSED] ORDER

On October 7, 2003, the petitioner Jose Galvan-Luna was sentenced to 70 months imprisonment for one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. On December 15, 2005, Galvan-Luna filed a Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (Civil Action 05-05218 JW), alleging that his trial counsel was ineffective in failing to file a notice of appeal despite being specifically directed to do so. The petitioner also requested appointment of counsel. On March 22, 2006, the Court issued an Order directing the government to file a response. The government filed its response on May 1, 2006. By Order of July 20, 2007, the Court granted Galvan-Luna's motion for appointment of

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counsel. The Court also granted the government's request for an evidentiary hearing to determine whether counsel disregarded the petitioner's instructions to file a notice of appeal. Jerry Fong, Esq., was appointed as Jose Galvan-Luna's counsel for purposes of handling the habeas corpus petition. Mr. Fong has recently communicated with the petitioner Jose Galvan-Luna, who has finished serving his sentence of imprisonment and is no longer in custody. Mr. Fong has advised the government that his client is no longer interested in pursuing the instant habeas corpus petition and has asked that it be dismissed. Accordingly the parties hereby stipulate that the petitioner Jose Galvan-Luna's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (Civil Action 05-05218 JW), which was filed on December 15, 2005, should be dismissed. The parties jointly request that the Court enter an order dismissing the same.

It is so stipulated. Respectfully submitted, Dated: June 29, 2009 JOSEPH P. RUSSONIELLO UNITED STATES ATTORNEY _____________/S/______________ SHAWNA YEN Assistant U.S. Attorneys

Dated: June 29, 2009 ___________/S/________________ JERRY FONG, ESQ. Attorney for Jose Galvan-Luna

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ORDER Based upon the stipulation of the parties and for good cause shown, it is hereby ORDERED that Jose Galvan-Luna's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (Civil Action 05-05218 JW), which was filed on December 15, 2005, is hereby DISMISSED. The Clerk shall close this file. Da ed July 1, day Datted :this ____2009 of July, 2009. ________________________________ JAMES WARE United States District Judge

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