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Title: Mariano Martinez v. Unites States

May 3, 2013

TITLE: MARIANO MARTINEZ
v.
UNITES STATES



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present

PROCEEDING (IN CHAMBERS): ORDER DENYING THE GOVERNMENT'S MOTION TO DISMISS

Before the Court is the Government's Motion (Dkt. 45) to Dismiss Petitioner Mariano Martinez's motion to vacate or set aside his sentence. After considering Petitioner's Opposition (Dkt. 48) and the Government's Reply (Dkt. 49), the Court DENIES the Government's motion.

I.Background

The facts of this case, from the underlying conviction of Petitioner Mariano Martinez, to the filing of the present motion to vacate or set aside his sentence, to the Court's subsequent appointment of counsel and the filing of an amended petition, are well-known to the parties and are summarized in previous orders of this Court. See, e.g., August 24, 2012, Minute Order (Dkt. 43).

a.Timing of the original motion

The following facts are undisputed. On October 3, 2005, Petitioner's conviction became final in United States v. Mariano Martinez, No. SA CR-99-83(A)-DOC,because the U.S. Supreme Court denied Petitioner's appeal. On October 4, 2006, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1) was stamped as "lodged" in the district court in the Central District of California. Subsequently, on October 6, 2006, the motion was filed by the clerk of the district court.

Petitioner's Motion included a "Certificate of Service by Mail" that was filled out and signed by Petitioner; this Certificate states, in part, that he was "in custody at the U.S. Penitentiary Marion, Illinois," and that he delivered the motion to the prison, with postage, ready to be sent on "9-28, 2006." See Mem. in Support of Mot. to Vacate (Dkt. 1), Certificate of Service.

b.Content of the original motion

Petitioner's memorandum in support of his motion was a 65-page document that stated four broad arguments based on 5th, 6th, and 14th Amendment rights, alleging ineffective assistance of counsel and denial of due process. While this document was not particularly focused, Petitioner alleged a denial of due process based on, inter alia, the fact that the prosecution used "false testimony regarding my ordering and whereabouts regarding the killings," and that the prosecution also "withheld evidence that points to my innocence regarding those crimes." Id. at 43. In addition, he argued that the Court allowed the jury "to consider 'unreliable' direct testimony, knowingly false testimony about my alleged involvement in those crimes." Id. at 44.

That portion of the motion focused mainly on the allegedly false testimony of Agent Samuel Spencer and Max Torvisco, but in other sections of the petition related to the ineffective assistance of counsel claim, Petitioner also focused on the unreliability of the government witness Ron Moreno. Id. at 17 (arguing that his attorney "failed to subpoena witnesses and investigate evidence regarding one of the governments [sic] principle [sic] witnesses, Ron Moreno"), 18 (arguing that his attorney failed to send him all of "the new information pertaining to Ron Moreno"), 20 ("There was much more information that the government had released after my trial . . . . [showing that ...


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