Micah Fenton Facey v. INS
Filing
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ORDER DISMISSING PETITION WITHOUT PREJUDICE 3 by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.) (lc)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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MICAH FENTON FACEY,
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Defendant.
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Case No. [CR 09-00364 DDP]
CV 11-04351 DDP T
ORDER DISMISSING PETITION WITHOUT
PREJUDICE
[Criminal Docket No. 52]
[Civil Docket No. 3]
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Presently before the court is Petitioner Micah Fenton Facey’s
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Petition for Post Conviction Relief Pursuant to Title 8 United
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States Code Section 1326(d) (“Petition”).
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Petitioner’s submissions, the court dismisses the Petition without
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prejudice and adopts the following Order.
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Having reviewed the
In 2009, the court accepted Petitioner’s plea of guilty to one
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count of illegal reentry in violation of 8 U.S.C. § 1326.
The
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court then sentenced Defendant to a 46-month prison term.
On May
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23, 2011, Petitioner filed this Petition for Post Conviction
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Relief, arguing that the 1990 deportation hearing underlying his
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illegal reentry conviction is invalid under § 1326(d).
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Section 1326(d) sets forth requirements to collaterally attack
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an underlying deportation order during a criminal proceeding for
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illegal reentry under § 1326.
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pled guilty and been sentenced in his criminal proceeding.
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therefore unclear what the basis is for this Petition - i.e.
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whether Petition is seeking a writ of habeas corpus pursuant to 28
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U.S.C. § 2241, or some other relief.
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not provide any basis for post-conviction relief.
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As discussed, Petitioner has already
It is
Section 1326(d) alone does
The court further notes that at least one district court has
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held that a guilty plea to illegal reentry precludes a § 1326(d)
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collateral attack on the underlying deportation order.
See Wong v.
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Ashcroft, 369 F. Supp. 2d 483, 487-88 (S.D.N.Y. 2005).
As the
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court then explained, however, a petitioner “retains the right to
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argue that his plea was not knowing and voluntary” - for instance,
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due to ineffective assistance of counsel.
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therefore allowed petitioner to amend his petition to assert such a
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claim, after finding that the claim “related back” to his original
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petition.
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Id. at 488.
The court
See id. at 489-90.
Accordingly, because Petitioner here has not articulated any
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ground for seeking post-conviction relief, the court hereby
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dismisses the Petition.
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prejudice, since it is possible that Petitioner could allege a
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valid basis for relief in an amended petition.
The dismissal, however, is without
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IT IS SO ORDERED.
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Dated: May 15, 2012
DEAN D. PREGERSON
United States District Judge
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