Case Information

*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA,

NO: 2:13-CR-2103-TOR-1 Plaintiff,

ORDER GRANTING DEFENDANT’S v. MOTION TO WITHDRAW

REMAINING § 2255 CLAIM GREGORIO FIGUEROA-OCHOA,

Defendant.

BEFORE THE COURT is Defendant’s Motion to Withdraw Petitioner’s 28 U.S.C. § 2255 Motion (ECF No. 400). A hearing was held in this matter on September 13, 2016. The Defendant was present with the services of an interpreter and was represented by appointed counsel, Robin C. Emmans. Plaintiff was represented by Meghan McCalla, in place of Benjamin David Seal. The Court has reviewed the pleadings and the record therein, heard from counsel and the Defendant and is fully informed.

Defendant filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction and sentence. ECF No. 364, 369. The Court denied Defendant’s motion as to all *2 claims contained therein, except as to Defendant’s third claim, for which the Court set the matter for an evidentiary hearing. ECF No. 382.

After full discussion with appointed counsel, Defendant now no longer seeks to pursue his third claim for relief which the Court set for an evidentiary hearing. The Court having previously Defendant’s first, second, fourth, and fifth claims for relief, will now DENY the § 2255 motion in its entirety.

A petitioner seeking post-conviction relief may appeal a district court's dismissal of the court’s final order in a proceeding under 28 U.S.C. § 2255 only after obtaining a certificate of appealability (“COA”) from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(B). A COA may issue only where the applicant has made “a substantial showing of the denial of a constitutional right.” See id. § 2253(c)(2). To satisfy this standard, the applicant must “show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation marks and citation omitted).

The Court concludes that Defendant is not entitled to a COA because he has not demonstrated that jurists of reason could disagree with the Court's resolution of his constitutional claim or conclude the issues presented deserve encouragement to proceed further.

*3 IT IS ORDERED:

1. Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF Nos. 365; 369) is .

2. The United States Marshal shall transfer Defendant back to the custody of the Bureau of Prisons for service of the remainder of his sentence.

3. The District Court Executive is directed to enter this Order, furnish copies to counsel and the U.S. Marshal Service.

4. The Court further certifies that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). This file and the corresponding civil file shall be CLOSED .

DATED September 15, 2016.

THOMAS O. RICE Chief United States District Judge