Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

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MDR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. John Lunghofer, Defendant/Movant.

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No. CR 00-1205-PHX-ROS No. CV 06-1607-PHX-ROS (VAM) ORDER

Movant John Lunghofer, confined in the Federal Correctional Institution-Florence in
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Florence, Colorado, filed a pro se Motion for Time Reduction by an Inmate in Federal
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Custody pursuant to 28 U.S.C. § 2255 (CR Doc. #99). The Court will summarily dismiss the
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Motion.
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I. Procedural History
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A Petition for Revocation of Supervised Release was filed and Movant admitted
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allegations that he violated the conditions of his supervised release. On April 3, 2006, the
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Court sentenced Movant to a 20-month term of imprisonment. In CR-02-926-PHX-ROS, the
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Court ordered that Movant's sentence in that case was to be served consecutively with his
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sentence in this case.
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In his Motion, Movant seeks a reduction of his sentence. The gravamen of his request
26 27 28 Movant's motion is not on the court-approved form and the form he has used, which is often used by deportable alien defendants, raises other claims which are entirely inapplicable to him. Case 2:00-cr-01205-ROS Document 102 Filed 09/07/2006 Page 1 of 3
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is that the Court reconsider its order that the sentences be served consecutively.1 He requests

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that the Court order the sentences to run concurrently so that he can care for his daughter and mother.2 II. Summary Dismissal A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). In this case, the Court finds that the record shows that Movant plainly is not entitled to relief and that summary dismissal under Rule 4 is warranted. III. Movant is not entitled to relief A motion filed pursuant to § 2255 is for a person "claiming the right to be released upon 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. Movant's request for a sentence reduction does not fit in any of these categories and thus is not a proper subject for § 2255 relief. In addition, under the present circumstances, the Court cannot reduce Movant's sentence. A judgment of conviction that includes a sentence is final except in extremely limited circumstances, which do not apply here. 18 U.S.C. § 3582(b). With few narrow exceptions, which do not apply here, a court generally may not correct or modify a sentence once it has been imposed. 18 U.S.C. § 3582(c); United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003).

This argument was specifically presented to the Court in Movant's Disposition Memorandum (CR Doc. #94) and, as Movant notes in his Motion, "mentioned at my sentencing." Case 2:00-cr-01205-ROS Document 102 -2Filed 09/07/2006 Page 2 of 3

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Finally, the order that the sentences be served consecutively was not issued in this case, but in CR-02-926-PHX-ROS. Movant filed an identical motion in that case. Thus, the Court will summarily dismiss the motion. IT IS ORDERED that the Motion for Time Reduction by an Inmate in Federal Custody (CR Doc. #99 in CR 00-1205-PHX-ROS) is denied and that the civil action opened in connection with this Motion (CV 06-1607-PHX-ROS (VAM)) is dismissed. The Clerk of Court must enter judgment accordingly. DATED this 7th day of September, 2006.

Case 2:00-cr-01205-ROS

Document 102

-3Filed 09/07/2006

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