Free Order - District Court of Arizona - Arizona

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Case 2:04-cr-00890-SRB Document 45 Filed 08/23/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff-Respondent vs.

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CR 04-0890-PHX-SRB CV 05-2349-PHX-SRB (ECV) ORDER

Roman Alberto Gonzalez ("Movant"), has filed a pro se Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Doc. #37. Movant pled guilty on August 18, 2004 to Importation of 5 Kilograms or More of a Mixture or Substance Containing a Detectable Amount of Cocaine. Doc. #27. On March 28, 2005, he was sentenced to the Bureau of Prisons for 37 months. Id. In their Response in Opposition to Motion to Vacate, Respondents addressed each of Movant's four grounds for relief on the merits. Upon review of the record, however, it appears that Movant waived his right to seek direct or collateral review when he pled guilty. Because Respondents did not raise the waiver issue in their response and given Movant's failure to address waiver in his motion to vacate, the court will give the parties an opportunity to be heard on the issue before it issues its Report and Recommendation.

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IT IS THEREFORE ORDERED: That on or before Friday, September 8, 2006, Movant and Respondents may each submit a supplemental filing to the court addressing the issue of whether Movant has, pursuant to the waiver provision in his plea agreement, waived his right to assert the claims contained in his motion to vacate. The court will consider those supplemental filings before submitting its Report and Recommendation to the District Judge. DATED this 23rd day of August, 2006.

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