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United States of America v. Ricardo Villagrana
April 19, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
RICARDO VILLAGRANA, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
This Court has received from the Clerk's Office photocopies of two documents self-prepared by Ricardo Villagrana ("Villagrana") that had been received in that office on April 7:
(1) an Application for Certificate of Appealability and (2) a Memorandum in support of that Application. Those documents are extraordinarily puzzling under the circumstances and, at a minimum, do not support the issuance of such a certificate ("COA" for convenience).
What the docket in this case*fn1 discloses is that Villagrana had previously filed a 28 U.S.C. §2255*fn2 motion to vacate, set aside or correct his sentence back on June 29, 2007. This Court promptly (on July 2) issued a memorandum opinion and order ("Opinion," reported at 494 F.Supp.2d 957) that dismissed the Section 2255 motion and terminated the civil case.
Next Villagrana filed an application for a COA on July 30, 2007, and on July 31 this Court entered its memorandum order that attached a copy of the Opinion and explained why in this Court's view no COA should be issued. In addition the July 31 memorandum order stated that Villagrana would either have to comply with the requirements of Section 1915 to qualify for in forma pauperis treatment or, alternatively, would have to pay the $455 in appellate filing fees in advance.*fn3 Finally, on April 14, 2008 our Court of Appeals issued its mandate that stated in part:
This court has reviewed the final order of the district court and the record on appeal. We find no substantial showing of the denial of a constitutional right. See 28 U.S.C. Section 2253(c)(2). Accordingly, the request for a certificate of appealability is denied. Villagrana's motion to proceed in forma pauperis is denied.
Three years of silence have elapsed since then. Nothing in Villagrana's current Application for a COA or his supporting Memorandum even suggests that this second effort to obtain post-conviction relief is timely. Indeed, Villagrana's Memorandum seeks to point to the decision in Bailey v. United States, 516 U.S. 137 (1995) as assertedly invalidating his conviction, heedless of the facts (1) that he had previously raised the Bailey case in his first Section 2255 motion and (2) that the Opinion (and consequently the Court of Appeals' confirmatory mandate) had rejected that effort. Villagrana cannot in good conscience relitigate the issue--particularly when his earlier effort was itself untimely.
Accordingly this Court finds that no COA should issue. As always (and as Villagrana did the first time around), that issue may be presented to the ...
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