Lopez-Sanchez v. USA

Filing 2

ORDER Denying as Moot Petition to Vacate under 28 USC 2255. Because Petitioner has been released from custody, this Court finds Petitioner's § 2255 motion is moot. Accordingly, it is hereby ordered that Petitioner's § 2255 motion is Denied as Moot. Signed by Judge John A. Houston on 4/11/2012.(All non-registered users served via U.S. Mail Service)(leh)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

8
9
10
11
12
13
14
15

RUBEN LOPEZ-SANCHEZ,
v.

Petitioner,

UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Civil No. 09-cv-1768-JAH
Crim. No. 04-cr-2051-JAH
ORDER DENYING MOTION TO
VACATE UNDER 28 U.S.C. § 2255

16
17

On September 17, 2004, this Court sentenced Petitioner to a total of thirty months

18

imprisonment, with one year of supervised release to follow, after Petitioner pled guilty to two

19

counts of violating 8 U.S.C. § 1325. On April 4, 2008, the Honorable Barry Ted Moskowitz,

20

United States District Judge, sentenced Petitioner to a total of forty-eight months

21

imprisonment, with one year of supervised release to follow, after Petitioner pled guilty to two

22

counts of violating 8 U.S.C. § 1325. On April 21, 2008, this Court sentenced Petitioner to an

23

additional six months imprisonment after Petitioner admitted to violating the conditions of the

24

supervised release imposed by this Court’s September 17, 2004 sentence. This Court ordered

25

the additional six months to be served consecutively to Judge Moskowitz’ April 4, 2008

26

sentence. Thus, to date, Petitioner has satisfied the sentences of imprisonment imposed by this

27

Court and by Judge Moskowitz. Indeed, the Federal Bureau of Prisons website confirms

28

Petitioner was released from custody on September 8, 2011, a fact of which this Court takes
09cv1768/04cr2051

1

judicial notice pursuant to the Federal Rules of Evidence, Rule 201.

2

On August 12, 2009, Petitioner, proceeding pro se, filed a motion under 28 U.S.C. §

3

2255 to vacate, set aside, or correct his sentence. (Dkt. No. 23.) Defendant asserts that his

4

ineligibility for minimum security confinement, drug rehabilitation programs, and pre-release

5

custody due to his alienage means he effectively received a longer and harsher term of

6

incarceration. On February 17, 2011, Respondent filed an opposition, in which Respondent

7

construes Petitioner’s motion as a collateral attack on the sentence imposed by Judge

8

Moskowitz. (Dkt. No. 31.) And while Petitioner was permitted to file a reply on or before

9

March 18, 2011, Petitioner has, to date, not filed a reply.

10

A motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence becomes

11

moot when a prisoner is released from custody before the sentencing court considers the merits

12

of the motion and there is no possibility that any collateral legal consequences will be imposed

13

on the basis of the challenged conviction. Lane v. Williams, 455 U.S. 624, 632 (1982).

14

Here, Petitioner does not challenge his conviction or raise any collateral legal

15

consequences that will be imposed on the basis of his conviction. Instead, Petitioner challenges

16

the length and harshness of his sentence. Because Petitioner has been released from custody,

17

this Court finds Petitioner’s § 2255 motion is moot. Accordingly, IT IS HEREBY ORDERED

18

that Petitioner’s § 2255 motion is DENIED AS MOOT.

19
20
21

Dated: April 11, 2012

JOHN A. HOUSTON
United States District Judge

22
23
24
25
26
27
28
2

09cv1768/04cr2051