The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER GRANTING MOTION TO DISMISS ACTION
[Motion filed February 8, 2011]
On January 12, 2011, Petitioner Jesse Reine Sahagun filed a document entitled "Motion of § 2241 under § 2243, for § 3143 Bail Hearing." On February 8, 2011, the Government filed a Motion to Dismiss Petitioner's Case, and on February 23, 2011, Petitioner filed a "Reply" to the Motion, which the Court construes as Petitioner's Opposition. ("Opp'n.) On March 25, 2011, the Government filed its Reply to Petitioner's Opposition.
On June 9, 2008, Petitioner pled guilty under a Plea Agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to a one count information charging him with violation of 8 U.S.C. § 1326(a), (b)(2). (Doc. Nos. 14, 18.) The Court sentenced Petitioner on August 4, 2008, and the Judgment and Commitment Order was entered in the docket on August 5, 2008. (Doc. Nos. 25, 26.) Petitioner filed no direct appeal, and indeed, the terms of his plea agreement all but foreclosed an appeal or collateral attack.
Although his Petition referred to Padilla v. Kentucky, 130 S.Ct. 1473 (2010), and "section 2241", Petitioner now disavows any claim for relief under 28 U.S.C. § 2241. (Opp'n at 1.) Rather, he asserts he is seeking only a bail hearing under 18 U.S.C. § 3143. Id.
Even if his action is construed as a motion brought for such relief, however, it has no merit. Defendant is neither a "person who has been found guilty of an offense and who is awaiting imposition or execution of a sentence," nor a "person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal, or a petition for writ of certiorari." 18 U.S.C. § 3143 (a), (b) Moreover, the time in which he could have filed a notice of appeal has long since expired.
Accordingly, Petitioner's "Motion" for a bail hearing is denied, and the action is ordered dismissed with prejudice.
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