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Pietro v. United States

United States District Court, S.D. California

March 24, 2017

GINO PAUL PIETRO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 14-cr-1623 DMS

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255.

          Hon. Dana M. Sabraw United States District Judge.

         Pending before the Court is Petitioner Gino Paul Pietro's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255. Respondent United States of America filed an opposition to the motion, and Petitioner filed a reply. For the reasons set out below, the motion is denied.

         I.

         BACKGROUND

         On June 10, 2014, an information was filed, charging Petitioner with one count of wire fraud, in violation of 18 U.S.C. § 1343. On the same day, Petitioner pleaded guilty to one count of wire fraud. On July 24, 2015, the Court sentenced Petitioner to a total of 10 months, consisting of 6 months to run consecutive to the sentence imposed by the United States District Court for the Central District of California (“CDCA”) in case number 14CR0019-AG and 4 months to run concurrent. Subsequently, on July 31, 2015, the Court issued a judgment. On August 15, 2016, Petitioner filed the present motion.

         In the motion, Petitioner argues he received ineffective assistance of counsel in violation of the Sixth Amendment because his trial counsel: (1) failed to advocate on his behalf, (2) forced him to plead guilty, (3) misinformed him that his sentence would run concurrent to the sentence imposed by the CDCA, (4) failed to discuss the plea agreement with Petitioner, (5) failed to assure there was an adequate factual basis for his guilty plea, and (6) had an actual conflict of interest.[1]

         II.

         LEGAL STANDARD

         A prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that sentence on the ground that:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]

28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, it must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. at § 2255(b).

         III.

         DISCUSSION

         A. ...


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