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U.S. v. Hilkey, 2:09-cr-0412-MCE-KJN P. (2014)

Court: District Court, E.D. California Number: infdco20141028k72 Visitors: 14
Filed: Oct. 23, 2014
Latest Update: Oct. 23, 2014
Summary: ORDER MORRISON C. ENGLAND, Jr., Chief District Judge. On February 21, 2012, Movant Charles Miller Hilkey, Jr. ("Movant") pled guilty to conspiracy to manufacture at least 100 marijuana plants, and structuring transactions to evade reporting requirements. See ECF Nos. 101-02. On January 23, 2013, Movant was sentenced to a total term of 49 months imprisonment. See ECF No. 163. On December 2, 2013, the Court entered an Amended Final Judgment of Forfeiture. See ECF No. 44, 2:09-cv-03542-LKK-
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ORDER

MORRISON C. ENGLAND, Jr., Chief District Judge.

On February 21, 2012, Movant Charles Miller Hilkey, Jr. ("Movant") pled guilty to conspiracy to manufacture at least 100 marijuana plants, and structuring transactions to evade reporting requirements. See ECF Nos. 101-02. On January 23, 2013, Movant was sentenced to a total term of 49 months imprisonment. See ECF No. 163. On December 2, 2013, the Court entered an Amended Final Judgment of Forfeiture. See ECF No. 44, 2:09-cv-03542-LKK-EFB. Pursuant to the Amended Final Judgment of Forfeiture and as set forth in the Plea Agreement, Movant forfeited certain designated real properties. See id.; ECF No. 101; see generally ECF No. 237.

On May 12, 2014, Movant filed an Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 ("2255 Motion"). See ECF No. 224. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 11, 2014, the United States filed a Motion to Dismiss Movant's 2255 Motion. Mot., ECF No. 225. On July 23, 2014, the magistrate judge filed findings and recommendations, ECF No. 230, which were served on all parties and which contained notice that any objections were to be filed within fourteen days. Petitioner filed objections to the findings and recommendations. The Government filed a reply. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis. The Court therefore ADOPTS the findings and recommendations IN FULL.

On October 20, 2014, Movant filed a Motion for a Temporary Restraining Order and Preliminary Injunction ("TRO Motion") through which he seeks to enjoin the Government from selling real property at an auction on October 29, 2014. See Motion, ECF No. 237. Movant's TRO Motion is premised on the same arguments set forth in Movant's 2255 Motion. Id. Because the October 29, 2014, auction has since been cancelled, there is no longer any need for extraordinary relief in the form of a temporary restraining order or preliminary injunction. See ECF Nos. 240, 244. Moreover, because the Court adopts the findings and recommendations in its entirety, the Court finds that the requested relief is not warranted as Movant is unable to demonstrate a likelihood of prevailing on the merits. Therefore, upon consideration of Movant's TRO Motion, as well as the Government's Response and Movant's Reply, Movant's TRO Motion is DENIED and the October 24, 2014, hearing on said motion is VACATED.1

For the reasons set forth above,

1. The findings and recommendations filed July 23, 2014, ECF No. 230, are ADOPTED IN FULL; 2. Respondent's Motion to Dismiss, ECF No. 225, is GRANTED; 3. Movant's Amended § 2255 Motion, ECF No. 224, is DISMISSED; 4. The Court DECLINES to issue a certificate of appealability; 5. The Clerk of the Court is directed to CLOSE companion civil case No. 2:12-cv-01512-MCE-KNJ P; 6. Movant's Motion for a Temporary Restraining Order and Preliminary Injunction, ECF No. 237, is DENIED; and 7. The October 24, 2014, hearing is VACATED.

IT IS SO ORDERED.

FootNotes


1. In its response to Movant's TRO Motion, the Government requests that the Court enter certain unspecified "controls" to prospectively prevent Defendant from taking any action to further delay or prevent the auction of the forfeited properties at issue. ECF No. 240. The Court declines to do so.
Source:  Leagle

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