Free Order on Motion to Produce - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Juan Martin Bravo-Diego, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) CR 03-0536-PHX-FJM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JKM

Pending before the Court are Defendant's Application to Proceed In Forma Pauperis and Motion to Compel Release of Transcripts by the Court (Doc. #21) and Motion to Reopen or Set Aside Conviction (Doc. #22). The Court will deny the motions. I. Background. On September 15, 2003, the Court entered a Judgment upon Defendant's plea of guilty to attempted reentry after deportation in violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). Defendant was sentenced to a term of 57 months of imprisonment and three years of supervised release. As part of his plea agreement, Defendant made the following waiver: Defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the information or indictment, or to the court's entry of judgment against defendant and imposition of sentence upon defendant, provided that the sentence is consistent with this agreement. Defendant further waives: (1) any right to appeal the court's entry of judgment against defendant; (2) any right to
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appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. Doc. #16 at 4. Defendant indicated in his plea agreement that he had discussed the terms with his attorney, agreed to the terms and conditions, and entered into the plea voluntarily. Doc. #16 at 6. On July 19, 2004, the Court granted Defendant's pro se petition for release of transcripts in defense counsel's possession. Doc. #19. On August 5, 2004, defense counsel Gregory Torok certified that he mailed to Defendant a copy of his file consisting of 125 pages. Doc. #20. II. Motion to Compel Release of Transcripts by the Court. Defendant seeks leave to proceed in forma pauperis so that he can obtain free copies of transcripts and other documents he claims he needs in order "to address unconstitutional processing on deportation." Doc. #21 at 1. Although 28 U.S.C. § 753(f) authorizes the district court to provide transcripts to a defendant at no cost in some cases, it does not authorize the district court to order payment for transcripts if the defendant has not yet filed a collateral attack on his conviction or sentence under 28 U.S.C. § 2255. United States v. MacCollom, 426 U.S. 317, 321 (1976). Defendant does not currently have § 2255 proceedings pending in this Court. Accordingly, to the extent that Defendant seeks copies at Court expense, his Motion must be denied. If Defendant seeks copies at his own expense, he should submit a request directly to the Clerk of Court. III. Motion to Reopen or Set Aside Conviction. Defendant seeks to have his conviction set aside on the ground that his attorney provided him with ineffective assistance of counsel by refusing to challenge his 1998 deportation. Once a judgment of sentence has been entered, the district court lacks jurisdiction to review it except in narrow circumstances. See 18 U.S.C. § 3582©); United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant's Motion to Reinstate does not raise any of the statutory exceptions provided in 18 U.S.C. § 3582. The only other basis
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for relief is a collateral attack pursuant to 28 U.S.C. § 2255. Defendant, however, does not seek relief under § 2255. In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court held that a district court may not recharacterize a post-judgment motion as a § 2255 motion "unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's `second or successive' restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing." Castro, 540 U.S. at 377 (emphasis in original). But even if the Court had provided Defendant with the Castro warning, it would not recharacterize his Motion to Reopen or Set Aside as a motion brought under § 2255 because Defendant explicitly waived his right to file a § 2255 motion in his plea agreement and he has not suggested any reason why that waiver should not be enforced. In fact, Petitioner's current claims affirm that his plea was entered voluntarily and knowingly. Petitioner entered a plea of guilty and waived his right to file a § 2255 motion even though he was aware of the grounds for challenging his 1988 deportation before he entered his plea. Doc. #22 at 4. IT IS ORDERED that Defendant's Motion to Compel Release of Transcripts by the Court (Doc. #21) and Motion to Reopen or Set Aside Conviction (Doc. #22) are denied. DATED this 5th day of July, 2007.

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