Diaz-Martinez v. USA

Filing 2

ORDER Denying as Moot Petition to Vacate under 28 USC 2255. Movant's Motion is Denied as Moot. Signed by Judge Roger T. Benitez on 4/6/2018.(All non-registered users served via U.S. Mail Service)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OSCAR DIAZ-MARTINEZ, Case No.: 3:16-cv-01672-BEN 3:15-cr-01020-BEN-1 Movant, 12 13 v. 14 UNITED STATES OF AMERICA, ORDER DENYING AS MOOT MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 Respondent. 15 16 17 On June 10, 2015, Movant Oscar Diaz-Martinez was convicted and sentenced to 18 30 months in custody for violating 8 U.S.C. §1326. Movant pleaded guilty pursuant to a 19 plea agreement wherein he waived his right to collaterally attack his conviction and 20 sentence. At the sentencing hearing he again waived his right to collaterally attack his 21 conviction and sentence. Notwithstanding his waiver, on June 27, 2016, Movant 22 proceeding pro se filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant 23 to 28 U.S.C. § 2255. (Docket No. 26.)1 In short, Movant’s motion asks the Court to 24 vacate his sentence and re-sentence him; he did not challenge his conviction. (See 25 generally Mot.) (requesting re-sentencing pursuant to Johnson v. United States, 135 S. 26 27 28 1 All docket citations refer to the criminal case docket, No. 15-cr-01020-BEN-1. 1 3:16-cv-01672-BEN 3:15-cr-01020-BEN-1 1 Ct. 2551 (2015) on the grounds that his conviction fell under the Residual Clause of the 2 Armed Career Criminal Act). Respondent, the United States (“the government”), filed a 3 response, opposing the motion. 4 The Court takes judicial notice that on May 26, 2017, while Movant’s motion was 5 pending, he was released from the Bureau of Prisons’ (“BOP’s”) custody. See Federal 6 Bureau of Prisons Website, Inmate Locater Detail for Oscar Diaz-Martinez, Register No. 7 49557-298, available at https://www.bop.gov/inmateloc/; Qureshi v. Sanders, 563 F. 8 Supp. 2d 1154, 1156 n.2 (C.D. Cal. 2008) (taking judicial notice of BOP’s “Inmate 9 Locator” website, which showed petitioner’s release from BOP’s custody). 10 As a result, Movant’s motion is moot. See Aaron v. Pepperas, 790 F.2d 1360, 11 1361-62 (9th Cir. 1986) (concluding petitioner’s habeas petition moot where petitioner 12 has satisfied his sentence and “merely contests the imposition and duration of his 13 sentence”). Therefore, Movant’s motion is denied. 14 IT IS SO ORDERED. 15 16 Dated: April 6, 2018 17 18 19 20 21 22 23 24 25 26 27 28 2 3:16-cv-01672-BEN 3:15-cr-01020-BEN-1

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