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Arteaga-Biretta v. United States

August 1, 2008

SALVADOR ARTEAGA-BIRETTA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DISMISSING PETITIONER'S MOTIONS FOR RECONSIDERATION FOR LACK OF JURISDICTION (Docs. 183, 184, 188, 199, 204)

On November 24, 1999, Petitioner Salvador Arteaga-Biretta timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner claimed as grounds for relief: (1) newly discovered evidence that demonstrates Petitioner is actually innocent of the crimes for which he was convicted and sentenced; (2) his right to a speedy trial was violated; (3) his right to bail was violated; and (4) he was denied the effective assistance of counsel because counsel: (a) failed to appeal his conviction, (b) failed to move for dismissal for violation of Petitioner's speedy trial rights, (c) failed to move for dismissal based on the violation of Petitioner's right to bail, (d) failed to negotiate a plea deal similar to that offered to Petitioner's co-defendants, and (e) failed to consult with Petitioner, interview witnesses, investigate, cross-examine, object to comments by the prosecutor in opening and closing argument, and argue at the suppression hearing that Petitioner's confession was the result of government threats. Petitioner also amended his motion to add a claim for relief based on Apprendi v. New Jersey, 530 U.S. 466 (2000). After the United States filed a response to the motion and Petitioner filed a reply, Petitioner's Section 2255 motion was denied on the merits and a certificate of appealability declined by Memorandum Decision and Order filed on March 6, 2003 (Doc. 178). Petitioner did not file an appeal from the denial of his Section 2255 motion.

On May 10, 2004, Petitioner filed a "Motion to Enlarge the Time for Filing an [sic] Response to This Court's Memorandum and Order Entered on March 6, 2003." (Docs. 179 & 180). By this Motion, Petitioner: moves, pursuant to Fed.R.Civ.P. 60(b)(6), for this court to reconsider the above referenced portion of its March 6, 2003, Memorandum and order [sic], furthermore, a Rule 60(b)(6)

Motion can be granted even when the moving party is guilty of neglect for failing to disclose certain information prior to the judgment was entered, if the previously undisclosed information is central to the litigation that it shows, the initial judgment to have been Manifestly unjust' See COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY V. UNITED STATES SECRET SERVICE, 72 F.3d 897, 903 (D.C.Cir.1996).

Finally, Petitioner takes full responsibility for its failure, to raise some the arguments it is now want to presenting in its present petition to this courts March 6, 2003 order entered here.

And

Accordingly, the petitioner therefore are requesting that this Honorable court to enlarge the time for filing a response to this court's memorandum and order, in his opposition, the petitioner briefly will explained the method by this hes Federal sentence imposed on the firearm charges is in violation of the United states Constitution, and the right to effective Assistance of counsel., where (1). Defense counsel allowed the District court and Magistrate judge to Misrepresent the true nature of the Firearm charges., (2). Defense counsel Misrepresented the true nature of the offense charged in count three of the indictment. (3). Defense counsel's performance prejudiced petitioner's case when counsel willfully allowed Salvador Arteaga to remain ignorant, of the true nature of the weapon charge in the indictment. (4). Defense counsel allowed Salvador Arteaga, under the total effect of 1, 2, 3, above, to remain ignorant of the true nature of the weapon issues. [SIC]

By Order filed on May 19, 2004, (Doc. 181), Petitioner's Motion to Enlarge was denied:

This motion is an obvious attempt to avoid the bar of the limitations period for filing any notice of appeal. Petitioner seeks to 'enlarge the time for filing a response to the Court's Memorandum and Order entered on March 6, 2003.' There is no right to file a response to the Court's final decision nor to have a hearing thereon.

On March 7, 2005, Petitioner filed a "Motion for an Extension of Time for Filing an [sic] Response in Opposition to the Court's Order Entered on March 6, 2003" (Doc. 184). This motion asserts that Petitioner asserts that "Ms:URTIEW testimony is plainly contrary to the physical evidence dound at kern County property;" that the prosecution did not present sufficient evidence at trial for the jury to find that the substance seized by police officers at the Kern County laboratory site contained "D-pseudoephedrine Hc1; that counsel was ineffective because of his failure to raise these issues; that "[t]here is considerable evidence which was not brought out at trial, some of which because of ineffective Assistance of counsel[, s]ome of which is because of BRADY material;" and that Petitioner was denied the effective assistance of counsel because:

(1). Defense counsel allowed the District court and Magistrate Judge to misrepresent the true nature of the substance that were seized on May 30, 1997.

(2). Defense counsel misrepresented the true nature of the charged on counts 1 and 2 of the indictment.

(3). Defense counsel performance prejudiced petitioner's case when counsel willfully fails to examine the report of investigation related to ...


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