Opinion
No. C 02-40239 SBA.
July 9, 2008
ORDER [Docket No. 77]
Before the Court is defendant's Motion to Vacate under 28 U.S.C. 2255 (the "Motion") [Docket No. 77] and a supporting letter dated November 5, 2007 (the "Letter") [Docket No. 86]. Defendant argues the Court in amending his judgment on July 26, 2007, see Docket No. 76, after the Ninth Circuit vacated his initial judgment and remanded his matter for re-sentencing, see Docket No. 61, did not calculate his sentence properly. See Mot at 6-8, Letter. Specifically, defendant argues rather than having to serve time through December 2007, the Court should have ordered him released from custody in July 2007. See id.
In order to file a motion under 28 U.S.C. § 2255, a plaintiff must be "in custody." 28 U.S.C. § 2255(a). "Custody" includes situations beyond physical confinement, such as parole. Jones v. Cunningham, 371 U.S. 236, 239-43 (1963). Nonetheless, in this case, the Clerk of the Court confirmed with the United States Bureau of Prisons that plaintiff was released from federal prison on December 28, 2007. Thus, the Court cannot provide plaintiff with his requested relief of release from prison prior to or during December 2007. The Court thus DENIES his Motion as moot.
IT IS SO ORDERED.