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United States v. Montoya-Garcia

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 17, 2008

UNITED STATES OF AMERICA , PLAINTIFF-RESPONDENT,
v.
GERARDO MONTOYA-GARCIA, DEFENDANT-PETITIONER.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

On March 20, 2008, Petitioner Gerardo Montoya-Garcia ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. The Court has reviewed the record in this case, which clearly establishes that on May 23, 2007, Petitioner waived both ght to appeal and to collaterally attack his conviction and sentence. Plea Agreement ¶ XI. Petitioner's motion raises no challenge to the validity of that waiver, therefore this Court lacks diction to consider any collateral challenge to his conviction and sentence. See Washington v. Lampert, 422 F.3d 864, 869-70 (9th Cir. 2005) (recognizing that if sentencing agreement's iver of the right to file a federal habeas petition was valid, district court lacked jurisdiction to hear the case). The Court also finds that none of the potential limitations to the validity of the waiver are applicable in this case.

Accordingly, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

20080717

© 1992-2008 VersusLaw Inc.



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