Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Najah Toma Zetouna, 13 Defendant/Movant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) CR 02-0922-PHX-FJM CV 05-0922-PHX-FJM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JKM

Movant Najah Toma Zetouna has filed a pro se Motion to Reopen (Doc. #442) his action under 28 U.S.C. § 2255. The Court will deny the Motion to Reopen. On October 12, 2004, Movant was sentenced to imprisonment for a term of thirty months after he pled guilty to misprision of a felony in violation of 18 U.S.C. § 4. On June 8, 2005, Movant, who was then represented by retained counsel, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. #406). Movant asserted a single claim in support of his § 2255 Motion: he claimed that his prior counsel was ineffective by failing to advise him of the mandatory immigration consequences of his plea. On August 4, 2005, Movant filed a Motion to Withdraw Motion to Vacate (Doc. #413) because his "counsel has determined that the claim is not supported by the law of immigration." On November 1, 2005, the Court entered an Order (Doc. #421) granting the Motion to Withdraw, deeming the § 2255 Motion to Vacate as withdrawn and dismissing the related civil action. A Judgment (Doc. #422) was entered on the same day.
Case 2:02-cr-00922-FJM Document 444 Filed 04/06/2007 Page 1 of 2

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On October 16, 2006, Movant filed a pro se Motion to Reopen the Filing Made Pursuant to 28 U.S.C. § 2255 (Doc. #442). Movant acknowledges that he agreed to withdraw his § 2255 Motion on the advice of counsel, but he seeks to reopen the action because he "now believes that the sentence imposed exceeds the maximum penalty allowed by statute." (Doc. #442 at 4). Movant, however, does not explain how or why his sentence is unlawful. Movant's assertion that he now believes his sentence is excessive does not undermine the propriety of the voluntary dismissal of this action. The Motion to Reopen therefore provides no basis for vacating the judgment previously entered in this action. Additionally, Movant appears to acknowledge that if he had brought this claim as a new motion under § 2255, it would be barred by the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996. See Doc. #442 at 2-3. But even if a new § 2255 motion would not be barred by the statute of limitations, Movant's conclusory claim that his sentence is excessive is insufficient to support a new claim for relief under § 2555. See Rule 2(b)(2) of the Rules Governing Section 2255 Proceedings (a § 2255 motion must "state the facts supporting each ground"). The Motion to Reopen will therefore be denied. IT IS ORDERED that Movant's Motion to Reopen (Doc. #442) is denied. DATED this 5th day of April, 2007.

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