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Kikuchi v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


June 23, 2005

THOMAS I. KIKUCHI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.
STEPHANIE LANDA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: W Illiam Alsup United States District Judge

ORDER REGARDING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND RELATED MOTIONS

A hearing was held on June 21, 2005 on numerous motions. This order captures the following rulings by the Court:

1. For the reasons stated on the record, the Court GRANTED Ms. Margolin's request to substitute in as counsel for Mr. Kikuchi.

2. For the reasons stated on the record, the Court GRANTED with prejudice Ms. Margolin's motion to dismiss Mr. Kikuchi's section 2255 petition.

3. For the reasons stated on the record, the Court GRANTED the government's motion for summary judgment on petitioners' claims of ineffective assistance of counsel and

DENIED Ms. Landa's § 2255 petition.

In addition, the Court took petitioners' motions for re-sentencing for Ms. Landa and Mr. Kikuchi under submission. Petitioners argue that they should be re-sentenced in accordance with United States v. Booker, 543 U.S.____, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005). This order finds that the Court lacks jurisdiction to decide these claims in the original criminal action, judgment having been entered long ago. As for the § 2255 action, the waiver language in petitioners' plea agreements bar them from challenging their sentences on any other grounds except for a claim of ineffective assistance of counsel, which has now been denied. Therefore, the motions for re-sentencing are DENIED. Consequently, Ms. Landa's further motion for "pretrial services" to prepare a sentencing recommendation is moot.

IT IS SO ORDERED.

20050623

© 1992-2005 VersusLaw Inc.



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