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United States of America v. David Neal

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 11, 2012

UNITED STATES OF AMERICA, RESPONDENT,
v.
DAVID NEAL, MOVANT.

ORDER

Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence filed pursuant to 28 U.S.C. § 2255. On October 29, 2010, movant pled guilty to one count of possessing one or more matters containing visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). (See Dkt. Nos. 18 & 29.) On April 1, 2011, he was sentenced to a term of eighty-four months imprisonment, a supervised release term of life and a $100 special assessment. (See Dkt. Nos. 28 & 29.)

In November of 2011, movant filed his initial motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On January 5, 2012, movant was ordered to file an amended motion on the proper form and sign it under penalty of perjury within thirty days. (See Dkt. No. 35.) Thereafter, movant filed an amended motion to vacate, set aside or correct his sentence. (See Dkt. No. 39.) On March 7, 2012, respondent was ordered to file and serve a response to movant's amended motion. (See Dkt. No. 40.)

On June 11, 2012, movant filed a motion for leave to amend his § 2255 motion. (See Dkt. No. 44.) On June 21, 2012, movant's motion for leave to file a second amended § 2255 was granted and he was ordered to file a second amended § 2255 motion within thirty days. Respondent was ordered to file a response to movant's second amended § 2255 motion within sixty days of service of that second amended § 2255 motion.

Movant then requested an extension of time to file a second amended § 2255 motion which was also granted. (See Dkt. Nos. 52 & 53.) Movant filed his second amended § 2255 motion (labeled on the court's docket as a third amended motion to vacate) on August 27, 2012. Pursuant to the court's June 21, 2012 order, respondent has until October 26, 2012 to file a response to movant's August 27, 2012 § 2255 motion.

Presently before the court are movant's motion for summary judgment (see Dkt. No. 55.), motion to expedite (see Dkt. No. 56.), motion for a ruling on movant's motion for summary judgment (see Dkt. No. 57.) and motion to compel. (See Dkt. No. 59.) As previously noted, respondent has until October 26, 2012 to respond to movant's August 27, 2012 § 2255 motion. Accordingly, movant's motion for summary judgment will be denied without prejudice on the grounds that it is premature. In light of this ruling, movant's motion for a ruling on his motion for summary judgment will be denied as moot.

Movant has also filed a motion to expedite this case. (See Dkt. No. 56.) Movant's motion to expedite will be denied. As previously noted, respondent's response to movant's August 27, 2012 § 2255 motion is not yet due. The court is aware of movant's pending § 2255 motion but the court's docket of pending cases is substantial and the court must act first on those matters that have been pending the longest. Movant is advised that the court acts to resolve pending cases in the most efficient manner possible and will do so in this case. The court does note, however, that the operative pleading before the court is movant's third amended motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 that was not filed by movant until August 27, 2012.

Finally, movant has filed a motion to compel. (See Dkt. No. 59.) However, in that motion movant has merely requested once again that the court rule on his pending § 2255 motion. The motion to compel will therefore be denied for the same reasons as movant's motion to expedite.

Accordingly, IT IS HEREBY ORDERED that:

1. Movant's motion for summary judgment (Dkt. No. 55) is denied without prejudice as premature;

2. Movant's motion to expedite (Dkt. No. 56.) is denied;

3. Movant's motion for ruling on his motion for summary judgment (Dkt. No. 57.) is denied as moot; and

4. Movant's motion to compel (Dkt. No. 59.) is denied.

20121011

© 1992-2012 VersusLaw Inc.



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