IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 24, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
ORDER DIRECTING UNITED STATES TO FILE RESPONSE
Defendant, a federal prisoner proceeding pro se, has filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2241. Defendant pled guilty June 18, 2010 to possession of cocaine base with intent to distribute and possession of a firearm in relation to a drug trafficking offense. He was sentenced March 25, 2011 to a term of 180 months imprisonment and eight years supervised release. The plea was entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)( C ). In addition to the agreed upon length of sentence, defendant also agreed to waive his rights to appeal and collaterally attack his conviction and sentence, specifically agreeing not to file a motion under section 2255 or 2241 of Title 28. Plea Agreement, 7:8-12.
Finally, defendant waived any right to allege that the offense charged in the indictment and to which he pled guilty involved crack cocaine. Plea Agreement, 8:6-13.2.
Now, despite the express language of his plea agreement, defendant has filed a document claiming his "actual innocence" and seeking to vacate his conviction and sentence due to a purported change in the substantive law involving cocaine sentencing. Without deciding the issue of waiver at this juncture, the court directs the government to file a response to the motion within 30 days from the filing date of this order addressing both waiver of collateral attack, and the merits of defendant's claim. Defendant may file a reply within 30 days after service of the government's response. The matter will stand submitted upon receipt of the last brief.
IT IS SO ORDERED.
Edward J. Garcia
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