Hernandez-Torres v. USA

Filing 3

ORDER DISMISSING REMAINING CLAIM. Signed by Judge Ronald M. Whyte on 9/28/12. (jg, COURT STAFF) (Filed on 9/28/2012)

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*E-FILED - 9/28/12*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
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NO. CR-07-00363-RMW
Plaintiff/Respondent,

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(Related to: C-09-04234-RMW)
v.

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ORDER DISMISSING REMAINING CLAIM
JUAN HERNANDEZ-TORRES

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Defendant/Movant.
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On September 11, 2009 Juan Hernandez-Torres filed a Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside or Correct Sentence by Person in Federal Custody. Hernandez-Torres was

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sentenced on January 16, 2009 to 65 months confinement following his open plea to illegal re-entry

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following deportation. He made four claims for relief in his § 2255 motion: (1) ineffective

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assistance of counsel for counsel's failure to file a promised notice of appeal; (2) his sentence was

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unreasonable because he should have received a departure under Guideline § 5K3.1 for the early

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disposition program; (3) his sentence was unreasonable because the court failed to take into

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consideration his family ties and responsibilities; and (4) he should be released for deportation.

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Grounds (2) - (4) were dismissed by order dated March 22, 2012. By order dated June 22,

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2011 defendant was ordered to supply some clarifying facts regarding the first ground of his motion

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by July 29, 2011. Defendant was warned than if he failed to provide the requested information, his

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motion would be denied. Defendant has failed to submit the requested information. Therefore, his §

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2255 motion is denied.
ORDER DISMISSING REMAINING CLAIM
CR-07-00363-RMW (Related to: C-09-04234-RMW)

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Defendant has not shown that jurists of reason would find it debatable whether the motion

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states a valid claim of the denial of a constitutional right or that they would find it debatable whether

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this court was correct in its procedural ruling. Therefore, defendant is not entitled to a Certificate of

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Appealability. See 28 U.S.C. §2253.

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The Clerk shall close the file.

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DATED: 9/28/12

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_______________________________
RONALD M. WHYTE
United States District Judge

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ORDER DISMISSING REMAINING CLAIM
CR-07-00363-RMW (Related to: C-09-04234-RMW)

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, et al,

Case Numbers: CV09-04234 RMW
CR-07-00373 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JUAN HERNANDEZ-TORRES,
Defendant.

/

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 September 28, 2012, 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.

Juan Hernandez-Torres
#10682-111
Federal Correctional Institution
PO Box 52020
Bennettsville, SC 29512

Dated: September 28, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk