IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 16, 2009
MATHIAS DEGEFU ZEWDIE, PETITIONER,
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 AS MOOT AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT AND TO CLOSE THIS CASE
Petitioner Mathias Degefu Zewdie timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner was charged by Superseding Indictment with conspiracy to possess pseudoephedrine with knowledge or reasonable cause to believe that it would be used to make methamphetamine, and aiding and abetting, and possession of a listed chemical with knowledge or reasonable cause to believe that it would be used to manufacture methamphetamine. Petitioner was charged by Superseding Information with conspiring to aid and abet the manufacture of methamphetamine. Petitioner pleaded guilty pursuant to a written Plea Agreement to conspiring to aid and abet the manufacture of methamphetamine. The Plea Agreement specifically provided: The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed.
Acknowledging this, the defendant knowingly waives the right to appeal his conviction or any sentence (or the manner in which that sentence was determined) which is in accordance with the maximum provided Title [sic] 21, United States Code, Section 841(b)(1)(A) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The defendant also waives his right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under Title 28, United States Code, Sections 2241 or 2255.
Petitioner was sentenced on March 22, 2004 to 46 months incarceration and 36 months supervised release. Because Petitioner had waived his right to appeal in the Plea Agreement and during the change of plea proceedings, Petitioner was not advised of his right to appeal, so as not to impair the valid and subsisting waiver, to which his counsel agreed during sentencing.
Petitioner contends that he was denied the effective assistance of counsel because defense counsel, Federal Defender Marc Ament, did not file a Notice of Appeal after Petitioner requested that he do so. Petitioner asserts that counsel was ineffective because "counsel failed to filed [sic] Notice of Appeal on sentencing issue, that was in excess of 'satutory maximum' [sic] imposed by the Court," citing Blakely v. Washington, 542 U.S. 296 (2004). Because, pursuant to Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), an evidentiary hearing was required to determine whether counsel failed to file a Notice of Appeal after being requested to do so by Petitioner, the Court appointed Carolyn Phillips to represent Petitioner and directed the parties to schedule the evidentiary hearing.
Ms. Phillips has filed a Status Report in which she avers that Petitioner has been released from custody; that Petitioner is a citizen of Canada; and that neither she, Federal Probation, nor a private investigator retained by Ms. Phillips have been able to locate Petitioner either in the United States or in Canada.
Because Ms. Phillips has been unable to locate Petitioner, Petitioner is not available to testify in support of his claim that defense counsel did not file a Notice of Appeal after being requested to do so by Petitioner. Consequently, Petitioner cannot sustain his burden of proof that he was denied the effective assistance of counsel. Under these circumstances, Petitioner's Section 2255 motion is moot.
For the reasons stated:
1. Petitioner Mathias Degefu Zewdie's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED AS MOOT;
2. The Clerk of the Court is directed to enter JUDGMENT FOR RESPONDENT and to close this case.
IT IS SO ORDERED.
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