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Masterman v. Unites States

October 27, 2010

RICHARD MASTERMAN PETITIONER,
v.
UNITES STATES OF AMERICA, RESPONDENT.



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

ORDER DENYING PETITIONER'S MOTION PURSUANT TO 28 U.S.C. § 2255

(Doc. 32)

I. INTRODUCTION

Richard Masterman ("Petitioner") is proceeding with motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Petitioner pled guilty to one count of felony armed bank robbery and one count of possession of a firearm during commission of a crime on February 4, 2007. (Doc. 32). Petitioner filed the instant motion on April 8, 2004. (Doc. 32).

Respondent filed a motion to dismiss Petitioner's motion on July 14, 2004. (Doc. 37). Petitioner filed opposition to Respondent's motion to dismiss ("Opposition") on March 4, 2005. (Doc. 38).

On September 28, 2010, the court issued an order requiring Respondent to submit an update regarding Petitioner's custody status. (Doc. 44). Respondent advised the court that Petitioner completed his term of supervised release on November 9, 2008 and is no longer in the custody of the Bureau of Prisons. (Doc. 45, Ex. A). Respondent further advised that Petitioner is currently under the supervision of the Department of Homeland Security, which is seeking to deport him to his native El Salvador for alleged illegal immigration status. (Id.).

II. LEGAL STANDARD

A person convicted of a crime in federal court may move to vacate the conviction pursuant to 28 U.S.C. § 2255. Because there is a presumption that a felony conviction carries collateral consequences, a convicted person's completion of their sentence does not render a motion under section 2255 moot. See, e.g., Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir. 1990).

Section 2255(f) provides that a one-year period of limitation applies to a Section 2255 motion, which limitation period runs from the latest of:

(1) the date on which the judgment of conviction became final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...


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