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United States v. Garcia

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
v.
FERNANDO PONCE GARCIA, DEFENDANT/PETITIONER.

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

ORDER RE PETITIONER'S MOTION FOR STATUS OF POST-CONVICTION MOTIONS

Petitioner, proceeding in pro per, has filed a motion requesting the status of his post-conviction motions.

On April 26, 2010, Petitioner filed a motion entitled "Pro Se Nunc Pro Tunc Motion Based on Defendant's 'Actual Innocence Claim' in Behalf of the Illegal Sentence Enhancement, Pursuant to 18 U.S.C. § 924(c)(a) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime)." By Memorandum Decision and Order filed on May 28, 2010 ("May 28 Memorandum Decision"), the Court construed Petitioner's motion to be a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 and ordered Petitioner to file a pleading advising whether or not he consents to the recharacterization of his motion as a Section 2255 motion.

The May 28 Memorandum Decision was served by mail at his current address at FCC Coleman-Medium on May 28, 2010. Petitioner received the May 28 Memorandum Decision because, on June 18, 2010, Petitioner filed a Section 2255 motion and because the May 28 Memorandum Decision was not returned as undeliverable. Petitioner's Section 2255 motion was denied by Memorandum Decision and Order filed on July 7, 2010 ("July 7 Memorandum Decision") and a certificate of appealability was denied. The July 7 Memorandum Decision was served by mail on Petitioner at his current address at FCC Coleman-Medium on July 7, 2010. Service of the July 7 Memorandum Decision has not been returned by the U.S. Postal Service as undeliverable or for any other reason.

The status of Petitioner's post-conviction motions is that both have been denied and Petitioner has been properly served with the decisions denying those motions. There is nothing left to address.

IT IS SO ORDERED.

20101021

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