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Garcia-Nunez v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 17, 2007

GILBERTO GARCIA-NUNEZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER DENYING "PETITION TO CON[S]IDER TITLE 18 PART: II CHAPTER: 227 SUBCHAPTER: D § 3582"

On May 9, 2006, Petitioner Gilberto Garcia-Nunez, proceeding in pro per, filed a "PETITION TO CON[S]IDER TITLE 18 PART: II CHAPTER: 227 SUBCHAPTER: D § 3582" ("Petition"). [See Civil No. 06cv1016.] Although Petitioner did not explicitly state that he was filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255, the Court found that it was likely that the Petitioner was doing so because the Petition was challenging the imposition of the sentence of imprisonment and requesting a downward departure. (See Pet'r's Pet. at 1.) On May 16, 2006, pursuant to United States v. Seesing, 234 F.3d 456, 463-64 (9th Cir. 2000), the Court issued a Notice Informing Petitioner of Options Re: "Petition" ("Notice"). [Doc. No. 30.] The Court informed the Petitioner that he could: (1) consent in writing to the Court construing the motion as a motion under § 2255 and ruling on the merits or (2) withdraw the motion and file an all-inclusive motion under § 2255. (Id. at 3.) The Court also ordered Petitioner to select an option listed no later than thirty (30) dates from the date the Notice was filed or the Petition would be dismissed without prejudice. (Id. at 4.) As of the date of this order, more than one year after the Notice was filed, the Petitioner has failed to file a responsive pleading. Accordingly, the Petition is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

20071017

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