Gomez-Talavera v. USA
Filing
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MEMORANDUM DECISION AND ORDER Denying Petitioner's Motion Under 28 U.S.C. 2255. Signed by Judge Ted Stewart on 11/17/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ALBERTO GOMEZ-TALAVERA,
Petitioner,
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
vs.
UNITES STATES OF AMERICA,
Civil Case No. 2:11-CV-1005 TS
Respondent.
Criminal Case No. 2:10-CR-806 TS
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255. For the
reasons discussed below, the Court will deny the Motion.
I. BACKGROUND
On September 1, 2010, Petitioner was named, along with his co-Defendant, in a felony
information. Petitioner was charged with manufacture of a controlled substance by cultivation,
possession of a firearm in furtherance of a drug trafficking crime, and illegal alien in possession
of a firearm. Petitioner pleaded guilty to manufacture of a controlled substance by cultivation
and being an illegal alien in possession of a firearm. On March 7, 2011, Petitioner was sentenced
to the mandatory minimum term of 120 months.
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Petitioner timely filed the instant Motion on October 28, 2011. Petitioner’s Motion is
written on a standard form, but the section where Petitioner is supposed to state the grounds on
which he challenges his conviction has been left blank. Since the filing of his Motion, the Court
has received no further correspondence from Petitioner.
II. DISCUSSION
Proceedings under 28 U.S.C. § 2255 “are used to collaterally attach the validity of a
conviction and sentence.”1 Rule 2 of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires a § 2255 motion to “specify all the grounds for relief
available to the moving party;” “state the facts supporting each ground;” and “state the relief
requested.”2
In his Motion, Petitioner sets forth absolutely no grounds for relief, nor does he state any
facts or state the relief requested. Simply put, Petitioner provides nothing to the Court, let alone
anything that would allow him to collaterally attack his sentence. As a result, the Court must
deny Petitioner’s Motion.
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McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997); see also
28 U.S.C. § 2255(a) (“A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.”).
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Rules Governing Section 2255 Proceedings for the United States District Courts, Rule
2(b)(1)-(3).
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III. CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 2:11-CV-1005
TS) is DENIED for the reasons set forth above. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required.
The Clerk of Court is directed to close Case No. 2:11-CV-1005 TS forthwith.
SO ORDERED.
DATED November 17, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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