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United States v. Muller, 2:15-cr-00205-TLN-EFB. (2019)

Court: District Court, E.D. California Number: infdco20191104a11 Visitors: 18
Filed: Oct. 31, 2019
Latest Update: Oct. 31, 2019
Summary: ORDER EDMUND F. BRENNAN , Magistrate Judge . Matthew Muller is a federal prisoner proceeding without counsel in this motion to vacate brought under 28 U.S.C. 2255. The motion has been referred to the undersigned magistrate judge for review. Muller filed a motion for leave to amend his 2255 motion on November 13, 2018, along with the amended motion. ECF Nos. 75, 77. The court screened out all but two of Muller's claims and ordered respondent to file an opposition (or a statement no opp
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ORDER

Matthew Muller is a federal prisoner proceeding without counsel in this motion to vacate brought under 28 U.S.C. § 2255. The motion has been referred to the undersigned magistrate judge for review.

Muller filed a motion for leave to amend his § 2255 motion on November 13, 2018, along with the amended motion. ECF Nos. 75, 77. The court screened out all but two of Muller's claims and ordered respondent to file an opposition (or a statement no opposition) to the motion for leave to amend by August 15, 2019. ECF Nos. 91, 103. Although respondent has timely filed an opposition to the § 2255 motion, it has filed nothing in response to the motion for leave to amend. ECF No. 113. However, the brief opposing the motion to vacate appears to concede that the motion to amend should be granted. That brief addresses the merits of the amended § 2255 motion and uses page citations to the amended motion rather than the original. The court therefore concludes that the motion for leave to amend is unopposed and it is granted. The court will consider movant's remaining claim1 as articulated in the amended motion, although this is merely a formality, as the claim is in all material respects identical to the claim as stated in the original motion.

Muller has not filed a reply brief though the date for doing so has passed. In consideration of his incarcerated and pro se status, the court will provide 21 days from the date of service of this order for movant to file a reply to respondent's August 15, 2019 brief, with regard to his remaining claim (that his plea was not knowing and voluntary).

Accordingly, it is hereby ordered that:

1. Movant's November 13, 2018 motion to file an amended § 2255 motion (ECF No. 75) is hereby GRANTED, and the court accepts the amended motion as the operative motion in this action; and 2. Movant shall have 21 days from the date of service of this order to file a reply to respondent's August 15, 2019 opposition brief (ECF No. 113). Movant is not obligated to file a reply. If the court does not receive a reply within the time provided, it will deem the matter submitted for decision on the amended motion and opposition briefs.

FootNotes


1. On August 29, 2019, Muller withdrew one of his two remaining claims. ECF No. 117. Accordingly, only a single claim remains before the court.
Source:  Leagle

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