Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-01658-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action 00 CV 1658 JLK MIGUEL ANGEL TORRES DE LA CRUZ Petitioner, v. JOSEPH GREENE, US-INS, Denver, Colorado. ________________________________________________ RESPONSE TO MOTION TO TRANSFER ________________________________________________ Prior to transferring this case to the Court of Appeals Mr. Torres De La Cruz requests the opportunity to include evidence that he has completed all his obligations under his sentence in Utah. The fact of his successful completion has been disputed by the government and, in part, informed the government's opposition. The government argued Mr. Torres De La Cruz would not be analogously eligible for Federal First Offender Act (FFOA) treatment even if such treatment were applied to his case because he had not completed probation. However, he did

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successfully complete probation on September 16, 2002. Please see attached. Wherefore, Petitioner respectfully responds this 3 day of February, 2006 /s/Jim Salvator Jim Salvator, #21055 Attorney for Miguel Angel Torres De La Cruz 1643 Erin Way Lafayette, CO 80026 (303) 604-0320

CERTIFICATION OF SERVICE (CM/ECF) I hereby certify that on this 3rd day of February 2006 I electronically filed this pleading with the Clerk of the Court using CM/ECF system which will send notification to the following: [email protected] /s/Jim Salvator Jim Salvator, #21055 Attorney for Miguel Angel Torres De La Cruz 1643 Erin Way Lafayette, CO 80026 (303) 604-0320

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ATTACHED EXHIBIT ­ 00 CV 1658 USDC Colo Submitted 2/3/06

__________________________________________________________ 4TH DISTRICT COURT - PROVO
UTAH COUNTY, STATE OF UTAH STATE OF UTAH vs. MIGUEL ANGEL TORRES CASE NUMBER 991402844 State Felony ______________________________________________________________________________ Defendants MIGUEL ANGEL TORRES, SALVADOR LOPEZ-RODRIGUEZ, JUAN DALRAAL ALVARADO, are linked. CHARGES Charge 1 - 58-37-8(2AI) - ILLEGAL POSS/USE OF CONTROLLED SUBSTANCE (amended) Class A Misdemeanor Plea: August 06, 1999 Guilty Disposition: August 06, 1999 {Guilty Plea} Charge 2 - 58-37A-5(1) - USE OR POSSESSION OF DRUG PARAPHERNALIA Class A Misdemeanor Disposition: August 06, 1999 Dismissed CURRENT ASSIGNED JUDGE SAMUEL MCVEY Division 1 PARTIES Defendant - MIGUEL ANGEL TORRES PAYSON, UT 84651 Represented by: RANDALL T GAITHER Plaintiff - STATE OF UTAH DEFENDANT INFORMATION Defendant Name: MIGUEL ANGEL TORRES Date of Birth: February 08, 1951 Law Enforcement Agency: COUNTY SHERIFF Prosecuting Agency: UTAH COUNTY

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Violation Date: June 27, 1999 ACCOUNT SUMMARY TOTAL REVENUE Amount Due: 506.50 Amount Paid: 506.50 Credit: 0.00 Balance: 0.00 PAPER BOND TOTALS Posted: 2,500.00 Forfeited: 0.00 Exonerated: 2,500.00 Balance: 0.00

Printed: 02/03/06 13:10:49 Page 1 CASE NUMBER 991402844 State Felony ______________________________________________________________________________

REVENUE DETAIL - TYPE: FINE Original Amount Due: 740.00 Amended Amount Due: 378.47 Amount Paid: 378.47 Amount Credit: 0.00 Balance: 0.00 Account Adjustments Date Amount Reason Nov 23, 2002 -361.53 Accounts Receivable accounted for by Adult Probation and Parole. Any outstanding payments should be made to AP&P. REVENUE DETAIL - TYPE: INTEREST Amount Paid: 121.53 Amount Credit: 0.00 Balance: 0.00 Account Adjustments Date Amount Reason Jul 30, 2002 128.31 Interest Posted to Date

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Nov 23, 2002 -6.78 Accounts Receivable accounted for by Adult Probation and Parole. Any outstanding payments should be made to AP&P. REVENUE DETAIL - TYPE: CERTIFIED COPIES Amount Due: 1.50 Amount Paid: 1.50 Amount Credit: 0.00 Balance: 0.00 REVENUE DETAIL - TYPE: CERTIFICATION Amount Due: 2.00 Amount Paid: 2.00 Amount Credit: 0.00 Balance: 0.00 REVENUE DETAIL - TYPE: CERTIFIED COPIES Amount Due: 1.00 Amount Paid: 1.00 Amount Credit: 0.00 Balance: 0.00 REVENUE DETAIL - TYPE: CERTIFICATION Amount Due: 2.00 Amount Paid: 2.00 Amount Credit: 0.00

Printed: 02/03/06 13:10:49 Page 2 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ Balance: 0.00 NONMONETARY BOND DETAIL - TYPE: Surety Posted By: American Bail Bonds Posted: 2,500.00 Forfeited: 0.00 Exonerated: 2,500.00 Balance: 0.00

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PROCEEDINGS 06-28-99 Minute Entry - Minutes for Bail Hearing Judge: STEVEN L. HANSEN PRESENT Clerk: shellyf Prosecutor: RAGAN, SHERRY E Defendant Interpreter: GRANT ANDERSEN Language: spanish Video Tape Number: 80 Tape Count: 8:21 HEARING The defendant was present in custody by way of video system. The Court found probable cause for arrest and set bail at $2,500 cash or bond. Felony First will be held 7/06/99 at 8:00 a.m. with Judge Hansen. 06-30-99 Filed: Bail Commissioner's Release Form (PTA 07/06/99 at 8:00 a.m.) 07-06-99 Case filed 07-06-99 Judge EYRE assigned. 07-06-99 Minute Entry - Minutes for Appointment of Counsel Judge: STEVEN L. HANSEN PRESENT Clerk: shellyf Prosecutor: JUBE, MATTHEW Defendant Defendant's Attorney(s): STURGILL, DAVID S. Interpreter: GRANT ANDERSEN Language: spanish Video Tape Number: 82 Tape Count: 8:21 INITIAL APPEARANCE A copy of the Information is given to the defendant.

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Printed: 02/03/06 13:10:52 Page 3 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ Advised of charges and penalties. APPOINTMENT OF COUNSEL

Court finds the defendant indigent and appoints UTAH COUNTY PUBLIC DEFENDER to represent the defendant. Appointed Counsel: Name: UTAH COUNTY PUBLIC DEFENDER Address: 40 S 100 W #200 City: PROVO UT 84601 Phone: (801)379-2570 WAIVER is scheduled. Date: 07/09/1999 Time: 10:00 a.m. Location: Second Floor, Rm 201 FOURTH DISTRICT COURT 125 N 100 W PROVO, UT 84601 Before Judge: DONALD J. EYRE 07-06-99 Bond Account created Total Due: 2500.00 07-06-99 Bond Posted Non-Monetary Bond: 2,500.00 07-06-99 WAIVER scheduled on July 09, 1999 at 10:00 AM in Second Floor, Rm 201 with Judge EYRE. 07-09-99 Minute Entry - Minutes for Waive Prelim Hearing Judge: DONALD J EYRE PRESENT Clerk: sandrasw Prosecutor: HADFIELD, PHILLIP W Defendant Defendant's Attorney(s): MEANS, THOMAS Interpreter: GRANT ANDERSEN Video Tape Number: 991108 Tape Count: 12 CONTINUANCE

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The Defendant's counsel TOM MEANS has made a motion for continuance of Waive Prelim Hearing. The motion is granted. Reason for continuance: Counsel's request. HEARING The matter was continued. The record showed that the interpreter services were requested to assist counsel and defendant.

Printed: 02/03/06 13:10:54 Page 4 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ 07-13-99 Filed: Motion For Entry of Judgment at Next Lower Degree of Offense 07-26-99 Minute Entry - Minutes for CONTINUED Judge: DONALD J EYRE PRESENT Clerk: leilanip Defendant Defendant's Attorney(s): MEANS, THOMAS Video Tape Number: Not recorded HEARING The Defendant appeared late on this matter. Due to clerical error, it had not been previously scheduled. WAIVE PRELIM HEARING is scheduled. Date: 08/06/1999 Time: 10:00 a.m. Location: Second Floor, Rm 201 FOURTH DISTRICT COURT 125 N 100 W PROVO, UT 84601 Before Judge: DONALD J. EYRE 07-26-99 WAIVE PRELIM HEARING scheduled on August 06, 1999 at 10:00 AM in Second Floor, Rm 201 with Judge EYRE.

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08-06-99 Filed: Affidavit of Counsel 08-06-99 Filed: Statement by Defendant in Advance of Guilty Plea 08-06-99 Charge 1 Disposition is Guilty Plea 08-06-99 Charge 2 Disposition is Dismissed 08-06-99 Minute Entry - Minutes for Change of Plea Judge: DONALD J EYRE PRESENT Clerk: jessicac Prosecutor: CLARK, DAVID L Defendant Defendant's Attorney(s): MEANS, THOMAS Video Tape Number: 991112 Tape Count: 1214 A pre-sentence investigation was ordered. The Judge orders ADULT PROBATION AND PAROLE to prepare a Pre-sentence report. SENTENCING is scheduled. Date: 09/24/1999 Time: 08:00 a.m. Location: Second Floor, Rm 201 FOURTH DISTRICT COURT

Printed: 02/03/06 13:10:57 Page 5 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ 125 N 100 W PROVO, UT 84601 Before Judge: DONALD J. EYRE 08-09-99 SENTENCING scheduled on September 24, 1999 at 08:00 AM in Second Floor, Rm 201 with Judge EYRE. 09-24-99 Tracking started for Fine. Review date Sep 24, 2002. 09-24-99 Tracking started for Probation. Review date Sep 24, 2002. 09-24-99 Minute Entry - Minutes for SENTENCE, JUDGMENT, COMMITME Judge: DONALD J. EYRE PRESENT Clerk: leilanip Prosecutor: LARSON, CURTIS L

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Defendant Defendant's Attorney(s): MEANS, THOMAS Interpreter: GRANT ANDERSON Language: spanish Video Tape Number: 991117 Tape Count: 1030 SENTENCE PRISON Based on the defendant's conviction of ILLEGAL POSS/USE OF CONTROLLED SUBSTANCE a Class A Misdemeanor, the defendant is sentenced to an indeterminate term of not to exceed five years in the Utah State Prison. The prison term is suspended. SENTENCE JAIL Based on the defendant's conviction of ILLEGAL POSS/USE OF CONTROLLED SUBSTANCE a Class A Misdemeanor, the defendant is sentenced to a term of 21 day(s) SENTENCE JAIL SERVICE NOTE Defendant to receive work release. SENTENCE FINE Charge # 1 Fine: $400.00 Suspended: $0.00 Surcharge: $340.00 Due: $740.00 Total Fine: $400.00 Total Suspended: $0 Total Surcharge: $340.00 Total Principal Due: $740.00 Plus Interest

Printed: 02/03/06 13:11:00 Page 6 CASE NUMBER 991402844 State Felony

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______________________________________________________________________________ The fine is to be paid in full by 09/24/2002. ORDER OF PROBATION The defendant is placed on probation for 36 month(s). Probation is to be supervised by ADULT PROBATION AND PAROLE. Defendant to serve 21 day(s) jail. Defendant is to pay a fine of 740.00 where the surcharge has been added to the fine. Interest may increase the final amount due. Pay fine on or before September 24, 2002. Pay fine to The Court. PROBATION CONDITIONS Defendant is ordered to enter into an agreement with the Adult Probation and Parole Department and comply strictly with the terms of probation. Defendant is ordered to make himself/herself available to the Adult Probation and Parole and to the Court when requested to do so. Defendant is ordered to advise Adult Probation and Parole and this Court of a current address at all times while on probation. Defendant is ordered to not violate the laws of the United States, the State of Utah, the laws of any state or any municipality. Defendant is ordered to pay a supervision fee at the discretion of the probation officer. Defendant is ordered to permit agents of Adult Probation and Parole to search his person, residence or his vehicle or any other property under his control without a warrant at any time, day or nght, to ensure compliance with the probation agreement. Defendant is ordered to obtain a substance abuse evaluation and treatment and comply with any recommended treatment as directed by Adult Probation and Parole. Defendant is ordered to totally abstain from the use of drugs while on probation and be subject to drug testing without the necessity of a warrant. 09-27-99 Fine Account created Total Due: 740.00 07-03-00 Filed: Appearance of Counsel - R Gaither for Defendant 07-07-00 Filed: Motion to Correct and Amend Sentence 07-07-00 Filed: Memorandum in Support of Motion to Amend Conviction 07-07-00 Filed: Letter from Vickie DeRose 07-08-00 Judge BURNINGHAM assigned. 07-19-00 Fee Account created Total Due: 121.53

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07-19-00 Fee Account created Total Due: 1.50 07-19-00 Fee Account created Total Due: 2.00 07-19-00 CERTIFIED COPIES Payment Received: 1.50 Note: Pre-payment for 1 certified copy of the Order 07-19-00 CERTIFICATION Payment Received: 2.00 08-09-00 Notice - NOTICE for Case 991402844 ID 994863

Printed: 02/03/06 13:11:01 Page 7 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ HEARING - MOTION TO SET ASIDE is scheduled. Date: 08/17/2000 Time: 09:00 a.m. Location: Fourth floor, Rm 403 FOURTH DISTRICT COURT 125 N 100 W PROVO, UT 84601 Before Judge: GUY R. BURNINGHAM 08-09-00 HEARING - MOTION TO SET ASIDE scheduled on August 17, 2000 at 09:00 AM in Fourth floor, Rm 403 with Judge BURNINGHAM. 08-10-00 Filed: State's Response to Defendant's Motion to Correct and Amend Sentence 08-17-00 Minute Entry - Minutes for HEARING ON MOTION Judge: GUY R. BURNINGHAM PRESENT Clerk: terik Prosecutor: HADFIELD, PHILLIP W Defendant not present Defendant's Attorney(s): GAITHER, RANDALL T.

Video Tape Number: 24 Tape Count: 10:05 am HEARING Counsel addressed the Court on the Defendant's motion to correct and amend sentence. This motion is taken under advisement for 30 days. In that time,

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Mr Gaither is to contact Mr Bryson. If there is no response at the end of the 30 days, this motion will be denied. 08-28-00 REVIEW HEARING scheduled on September 01, 2000 at 08:00 AM in Fourth floor, Rm 403 with Judge BURNINGHAM. 08-29-00 Filed: Motion to Set Hearing 08-29-00 Filed: Motion to Reduce Conviction 09-01-00 Fee Account created Total Due: 1.00 09-01-00 Fee Account created Total Due: 2.00 09-01-00 CERTIFIED COPIES Payment Received: 1.00 09-01-00 CERTIFICATION Payment Received: 2.00 09-01-00 Minute Entry - Minutes for Review Hearing Judge: GUY R. BURNINGHAM PRESENT Clerk: terik Prosecutor: HADFIELD, PHILLIP W Defendant Defendant's Attorney(s): GAITHER, RANDALL T. Video Tape Number: 28 Tape Count: 9:50

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HEARING Defendant's 402 motion is granted. This charge will be reduced to a class A misdemeanor. The Order is signed in open court. granted. Charge severity decreased from to. 09-01-00 Filed order: Findings of Fact and Order Judge gburning Signed September 01, 2000 09-05-00 Charge 1 amended 09-05-00 Note: REVIEW HEARING minutes modified. 09-05-00 Charge 1 amended 09-12-00 Filed order: AP&P PV Report-Approved (AP&P's interest is closed and the court retain jurisdiction in the event the defendant is

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not deported, or returns to Utah) Judge gburning Signed September 12, 2000 05-18-01 Fine Payment Received: 40.00 Note: Mail Payment; 07-18-01 Fine Payment Received: 30.00 Note: Mail Payment; 08-06-01 Note: SENTENCE, JUDGMENT, COMMITMENT minutes modified. 08-06-01 Bond Exonerated -2,500.00 09-18-01 Filed order: AP&P Progress/Violation Report - Approved (Probation reinstated under original terms for 24 months) Judge gburning Signed September 18, 2001 09-20-01 Tracking - Probation, changed to Review date Sep 18, 2003. 09-20-01 Tracking - Fine, changed to Review date Sep 18, 2003. 11-07-01 INTEREST Payment Received: 30.00 Note: Mail Payment; 12-31-01 Judge TAYLOR assigned. 05-02-02 Fine Payment Received: 118.47 Note: Mail Payment; 05-02-02 INTEREST Payment Received: 91.53 05-22-02 Fine Payment Received: 156.08 07-01-02 Fine Payment Received: 10.00 Note: Mail Payment; 07-30-02 Fine Payment Received: 23.92 Note: Mail Payment; 09-16-02 Filed order: AP&P Progress/Violation Report (approved: probation terminated successfully) Judge jrtaylor Signed September 16, 2002 09-23-02 Tracking ended for Probation. 09-23-02 Tracking ended for Fine. 11-23-02 Note: Accounts Receivable accounted for by Adult Probation and Parole. Any outstanding payments should be made to AP&P.

Printed: 02/03/06 13:11:13 Page 9 CASE NUMBER 991402844 State Felony ______________________________________________________________________________ 06-28-03 Judge HANSEN assigned. 12-31-04 Judge MCVEY assigned.