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Rodriguez v. United States

February 19, 2009

PETER RODRIGUEZ, 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 DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT AND CLOSE THE CASE

On August 21, 2007, Petitioner Peter Rodriguez, proceeding in pro per, timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

On September 19, 2006 Petitioner, represented by Roger Litman, pleaded guilty pursuant to a written Plea Agreement to conspiracy to distribute and possess with the intent to distribute cocaine base/crack. Pursuant to Paragraph 3 the Plea Agreement, Petitioner agreed:

(c) ... Defendant Rodriguez hereby waives all rights to contest the means by which his plea of guilty will be entered before the District Court. This waiver includes, but is not limited to, any claim, whether in District Court or in appellate proceedings and on direct appeal or subsequently, that the dictates of Federal Rule of Criminal Procedure 11, or any successor Rules, legislation or case authority, were not followed in the entry of defendant Rodriguez' guilty plea. Defendant Rodriguez also hereby waives any right to appeal his sentence, directly or subsequently, provided that the sentencing court accepts the stipulations between the parties and follows the recommendations of the government as set forth below.

(d) The defendant acknowledges that as a consequence of his guilty plea in this case he will become ineligible for (1) assistance under any State program funded under part A of title IV of the Social Security Act [42 U.S.C. § 601 et seq.], (2) ineligible for benefits under the food stamp program (as defined in section 3h of the Food Stamp Act) [7 U.S.C. § 2012(h)] and (3) ineligible for any State program carried out under the Food Stamp Act of 1977 [7 U.S.C. § 2011 et seq.]; all pursuant to 21 U.S.C. 862a. The defendant further acknowledges that as a consequence of his guilty plea in this case he may become permanently ineligible for any or all federal benefits.

Petitioner was sentenced on December 11, 2006 to 38 months incarceration and 60 months supervised release. Petitioner did not file a Notice of Appeal.*fn1

Petitioner's Section 2255 motion asserts as grounds for relief:

1) Ground One: Failure to Supress [sic] Evidence

My attorney stated that if I attempted to supress [sic] the evidence in this case, I would not have been awarded the 50% off the imposed sentence.

(2) Ground Two: Ineffective Assistance of Counsel.

Refer to Court [sic] one (1), and the Medical File in which my SSI benefits were terminated as a result of this case.

(3) Ground Three: Took advantage of my compressive [sic] skills, which resulted in my inability to understand the charges against me.

Counsel held me in Madera County Jail for unknown reason to secure a conviction in this ...


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