IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 28, 2011
UNITED STATES OF AMERICA, RESPONDENT,
STEVE TOGNOTTI, MOVANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Movant, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on January 10, 2011, thereafter referred, on January 13, 2011, to the undersigned. On February 22, 2011, a briefing order was filed. On March 25, 2011, an order, was filed granting respondent, additional time, until April 29, 2011 to respond. On March 14, 2011, filed a letter addressed to the undersigned which indicates confusion on movant's part; he states he was unaware that he had waived his appeal rights as part of his plea agreement but that his "final judgment papers" appear to indicate that he does have a right to appeal. See Docket # 91. Movant then asks the court to dismiss his appeal, by which he apparently means the pending § 2255 motion, if it will affect his "plea deal," but if he has "a very strong case and would be acquitted on all charges" (id.), he wishes to proceed on the pending motion.
In essence, movant appears to be asking the court to act as his counsel which, obviously, is inappropriate. Movant must make his own determination as to whether or not he chooses to proceed in this matter. Should movant seek to dismiss his § 2255 motion, he may voluntarily do so, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(I),*fn1 by simply filing a notice of dismissal before respondent serves an answer or other motion. Otherwise, this matter will proceed.
IT IS SO ORDERED.