The opinion of the court was delivered by: Hon. John A. Mendez United States District Judge
STIPULATION TO VACATE JUDGMENT AND SENTENCE UNDER 28 U.S.C. SECTION 2255; ORDER
IT IS HEREBY STIPULATED AND AGREED between plaintiff, United States of America, and defendant, Francisco Maldonado-Penaloza, that the conviction and sentence in this case be vacated pursuant to 28 U.S.C. § 2255 for the reasons set forth below. The parties agree that:
1. On March 11, 2008, Mr. Maldonado-Penaloza pled guilty to the indictment alleging a violation of 8 U.S.C. Section 1326, that is, that he was an alien who was found in the United States after removal without having obtained permission from appropriate authorities to reapply for admission to the United States.
2. The indictment alleged that Mr. Maldonado-Penaloza was removed in 2003. His 2003 removal rested on reinstatement of a 1997 removal order. However, the proceedings underlying that 1997 removal have now been reopened pursuant to a joint request by Mr. Maldonado-Penaloza and the Department of Homeland Security. See Exhibit A. (Joint Motion to Reopen). This has effectively rendered the prior 1997 order of removal non-final.
4. The government previously moved to dismiss a second indictment alleging Mr. Maldonado-Penaloza violated 8 U.S.C. Section 1326. See United States v. Madonado-Penaloza, No. 2:09-CR-0220 JAM (E.D. Cal.). The Court granted that motion on June 8, 2010 (docket no. 32).
5. Mr. Maldonado-Penaloza remains in custody of the Court in the above-captioned case for purposes of 28 U.S.C. § 2255 because he continues to serve a term of supervised release. Mujahid v. Daniels, 413
F.3d 991, 994 (9th Cir. 2005)(noting that habeas petitioner remains in the custody of the United States while on supervised release). (The magistrate judge ordered him released from jail on June 10, 2010, after Probation moved to dismiss a violation petition in light of the dismissal of case no. 2:09-CR-0220 JAM.)
For the foregoing reasons, the parties jointly request that the Court vacate the judgment and sentence and discharge Mr. MaldonadoPenaloza from further supervision of the Court.
Respectfully submitted, DANIEL J. BRODERICK Federal Defender
TIMOTHY ZINDEL Assistant Federal Defender Attorney for F. MALDONADO-PENALOZA BENJAMIN B. WAGNER United States Attorney
Dated: February 14, 2011 /s/ M. Beckwith MICHELE BECKWITH Assistant United States Attorney
For the reasons stated above, the judgment and sentence in this case is VACATED and Mr. Madonado-Penaloza is discharged from supervised release pursuant to 28 U.S.C. Section 2255. The Clerk shall serve a copy of this order on the United ...