Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, vs. Najah Toma Zetouna, Defendant/Movant.

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No. CR 02-922 PHX-FJM CV 05-1748 PHX-FJM (LOA) REPORT AND RECOMMENDATION

This matter arises on Movant's Motion to Withdraw Motion to Vacate, Set Aside, or
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Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255. (document #
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413)
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Counsel for Movant advises the Court that after conducting further research regarding
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Movant's claim, counsel has determined that the claim is not supported by immigration law.
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(document # 413) Accordingly, Movant requests that his § 2255 Motion be withdrawn.
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The Court warns Movant that in view of his concession that his claim is not supported
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by "the law of immigration," it is likely that any future § 2255 motion would constitute a second
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petition subject to the AEDPA's restrictions. See, 28 U.S.C. § 2244(b)(3). It is also likely that
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a future petition would be barred as untimely and as a successive petition. Under the AEDPA's
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gatekeeping provisions, the appropriate court of appeals must certify any "second or successive"
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motion filed pursuant to § 2255 to ensure that the motion contains either (1) newly discovered
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evidence, or (2) a new rule of constitutional law that is retroactive to cases on collateral review."
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Case 2:02-cr-00922-FJM

Document 415

Filed 08/11/2005

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Id. The Court, however, does not determine whether a future petition would be deemed second or successive because such a petition is not yet before the Court. See, Thai v. United States, 391 F.3d 491 (2nd Cir. 2004)(discussing the issue of when a court grants petitioner's motion to voluntarily withdraw a § 2255 motion, under what circumstances is a later petition considered successive for purposes of AEDPA's gatekeeping requirements.) After warning Movant of the consequences of withdrawing his § 2255 motion, the Court recommends that Movant's motion to withdraw be granted and that his § 2255 motion be dismissed. Should Movant no longer wish to withdraw his § 2255 motion in view of the Court's warnings, he shall so advise the District Court in his objections to this Report and Recommendation. After consideration of this matter, IT IS HEREBY RECOMMENDED that Movant's Motion to Withdraw Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (document # 413) be GRANTED and that Movant's § 2255 Motion (document # 406) be DISMISSED. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court=s judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). /// /// ///
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Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party=s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge=s recommendation. See, Rule 72, Federal Rules of Civil Procedure. Dated this 10th day of August, 2005.

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