Free Motion for Miscellaneous Relief - District Court of Connecticut - Connecticut


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Date: December 12, 2005
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Category: District Court of Connecticut
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Case 3:00-cr-00158-AWT Document 88 Filed 12/12/2005 Page 1 of4
IN THE UNITED STATES DISTRICT COURT _ i
` FOR THE DISTRICT OF CONNECTICUT `ii `
UNITED STATES OF AMERICA, ) iii-all I Y¤)H
Respondent, )
g 3:O0CRO0158(AHT)
v` ) Civil Action 3:04 Cv 2031(AHT)
MIGUEL MACHUCA, )
I Petitioner. )
MOTION FOR INCLUSION OF ADDITIONAL CASES
Comes Now, Petitioner, acting Pro Se, and respectfully moves i
for permission to include additional cases, specifically the Second i
Circuit decisions in United States v. Crosby, 397 F.3d 103 (2nd Cir.
2005); United States v. Gonzaleg, 420 F.3d 111 (2nd Cir. 2005); and
United States v. Cordova-Murgas, 422 F.3d 65 (2nd Cir. 2005); for
consideration in the above styled pending Civil Action and as support
for such, avers as follows:
1. The Petitioner is acting Pro Se and is currently incarcerated
at F.C.I. Elkton, P.O. Box 10, Lisbon, Ohio 44432.
2. Petitioner filed an Initial Brief and a Reply Brief under
28 U.S.C. §2255. The only topic of the brief was the illegal judicial i
decision made during sentencing without the imput of a jury,specNicaHy Q
the judicial determination that Machuca's sentence should have been
enhanced under U.S.S.G. §3B1.1. Machuca was sentenced in the District I
of Connecticut under the Federal Sentencing Guidelines.
3. In that Brief the violation of Blakely v. washington, 124 S.Ct.
2531 (2004), the case that originally brought the implementation of the T
Federal Sentencing Guidelines into question, was extensively discussed. y
See Petitioner's Brief at p.1.
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Case 3:00-cr-00158-AWT Document 88 Filed 12/12/2005 Page 2 of 4
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_ 4. The Second Circuit decisions in Crosby, supra; Gonzalez,
supra; and Cordova-Murgas, supra. are connected to Blakely with
respect to the court jurisdictional authority and the defendant'S
Sixth Amendment Constitutional Rights. ln addition, these cases
derived from the clarified holding in Booker, of Apprendi v. New
Jersey, 530 U.S. 466 (2000), and United States v. Thomas, 274 F.3d
655 (2nd Cir. 2001), and were not included and argued in the Brief
given they were not decided. Therefore, these cases sought in this
motion to be included (Crosby, Gonzalez, Cordova-Murgas), should be _
included due to being connected to Blakely, Apprendi, and Thomas.
5. Currently, the motion under 28 U.S.C. §2255 still pending
in this Honorable court. No decisions have been made regarding {
Petitioner's motion. i
6. Since filing the Brief, The Second circuit decided and wrote
the opinion in these cases (Crosby, Gonzalez, and Cordova-Murgas). In
these cases the Second Circuit stated that: J
I
»Et]he absence of an indictment is a jurisdictional
defect which deprives the court of its power to act."
Such a jurisdictional defect cannot be waived by a
defendant, even by a plea of guilty." Id.
See Cordova—Murgas, p. 66. I {
"lf a fact supports a specific sentence within the Q
sentencing range authorized by the jury verdict, it E
can constitutionally be treated as a sentencing factor,
but if the fact would expose defendant to a greater I
punishment than that authorized by the jury's guilty
verdict, it must be deemed an offense element submitted
to the jury."
I
See Gonzalez at p. 112. l
"A sentencing judge violate the Sixth Amendment by
making factual findings and mandatorily enhancing a Q
sentence above the range applicable to facts found
by the jury or admitted by a defendant."
See Crosby at p. 104. i
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Case 3:00-cr-00158-AWT Document 88 Filed 12/12/2005 Page 3 of 4 [
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7. Petitioner therefore respectfully requests that this
4 court consider the Second Circuit holding in Gonzalez, Crosby, i
and Cordova—Murgas, when considering his Motion Under 28 U.S.C.
§2255.
8. lt is the interest of justice to permit inclusion of
these cases for consideration of the petition as it is new law
applicable to an issue currently pending before this court.
9. MHEREFORE, numerous supporting reasons have ben given
for inclusion of these additional cases. lt is imperative to
permit inclusion of the new authorities to prevent a miscarriage I
of justice.
Respectfully Submitted this Brd day of December, 2005.
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»<" l A`_`_
MIGUEL MACHUCA
Reg. No. 13924-014
F.C.l. Elkton
P.0. Box 10
Lisbon, 0H 44432
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Case 3:00-cr-00158-AWT Document 88 Filed 12/12/2005 Page 4 of 4
I
E CERTIFICATE OF SERVICE i
I, Miguel Machuca, Petitioner, pro se, swear under the J
i penalty of perjury pursuant to 28 U.S.C. §1746, that I have 3
forwarded the original and two (2) copies of Petitioner motion
for inclusion of new authorHjes, to the Clerk of the Court and
an additional copy have been served to the opposing party.
Each forwarded to the following addresses:
UNITED STATES DISTRICT COURT
Office of the Clerk
450 Main Street
Hartford,`CT"06103
H. Gordon Hall, Esq.
U.S. Attorney's Office
157 Church St.
New Haven, CT 06510 9

MIGUEL MACHUCA
No. 13924-014
F.C.l. Elkton
P.O. Box 10
Lisbon, OH 44432
Dated: December 3, 2005 {
Lisbon, Ohio I
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