Opinion
No. CR S-04-0075 WBS PAN P.
August 4, 2006
FINDINGS AND RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On June 23, 2004, movant was sentenced in this action to thirty seven months in prison following entry of a guilty plea to charges of mail fraud. That sentence was to run concurrently with a thirty-seven month prison term imposed in a related criminal case, No. CR S-03-0458 WBS. Judgment was filed in this action on July 1, 2004. Movant waived his appeal rights and did not file a direct appeal from his conviction.
On August 25, 2004, movant filed the instant motion and a § 2255 motion in Case No. CR S-03-0458 WBS. In both motions, relying on Blakely v. Washington, 542 U.S. 296 (2004) and its progeny, movant contends that his right to jury trial was violated by the trial court's reliance at sentence on facts not found by a jury. The motion filed in Case. No. CR S-03-0458 WBS GGH P was denied by order filed October 28, 2004. Movant appealed from that order. By order filed April 27, 2005, this action was stayed pending disposition of that appeal. On December 13, 2005, the denial of the § 2255 motion in Case No. CR-S-03-0458 WBS GGH P was affirmed on appeal.
Movant pleaded guilty in both cases to separate counts of mail fraud and was sentenced to concurrent thirty-seven month prison terms in one sentencing proceeding. There are no facts which distinguish the Blakely claim at bar from that rejected in Case No. CR S-03-0458 WBS GGH P. The instant motion should therefore be denied.
In accordance with the above, IT IS HEREBY ORDERED that the stay of this action is lifted; and
IT IS HEREBY RECOMMENDED that:
1. Movant's August 25, 2004 motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 be denied; and
2. The clerk of the court be directed to close the companion civil case No. CIV S-04-1765 WBS PAN P.
These findings and recommendations are submitted to the United States District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).