Esquivel-Cabrera v. U.S.

Full title: ROBERTO ESQUIVEL-CABRERA, Petitioner, v. UNITED STATES OF AMERICA…

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Mar 31, 2006

Facts

etitioner, Roberto Esquivel-Cabrera (hereinafter referred to as “Esquivel-Cabrera” or “Petitioner”) was indicted by a federal grand jury for the offense of being an alien of the United States who had previously been convicted of a felony, to wit: Second Degree Assault with a Sexual Motivation, Superior Court of Washington State, For King County, Case Number 91-02649-8, and was thereafter deported and removed from the United States on or about February 2, 2001, to Mexico, was found to be knowingly, and unlawfully in the United States, having not obtained the consent of the Attorney General of the United States, or his successor, the Secretary of Homeland Security (Title 6, United States Code, Sections 202(3), (4), and 557) to re-apply for admission into the United States, all in violation of Title 8, United States Code, Section 1326(a)(2) and (b)(1).

Issue

Decision

This Court finds that the motion is subject to dismissal under the one-year limitation period applicable to § 2255 motions. See 28 U.S.C. § 2255 ¶ 6. Because “it appears from the face of the motion . . . and the prior proceedings in the case that the movant is not entitled to relief,” the motion is subject to summary dismissal. See Rule 4(b), Rules Governing Section § 2255 Proceedings for the United States District Courts (2005).

It is therefore ordered and adjudged that:

1. The petitioner’s motion to vacate, set aside, or correct the sentence according to 28 U.S.C. § 2255 (CV Dkt. #1) is denied.

2. The clerk is to enter judgment for the respondent, United States of America, and close this case.

3. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt. #46 in the underlying criminal case, case number 8:03-cr-163-T-30TBM.

Done and ordered. 

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