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Silver Jose Galindo v. United States of America

February 28, 2012

SILVER JOSE GALINDO,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER DENYING MOTION TO WITHDRAW ASSIGNED PROSECUTORS

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motion and supporting and opposing memoranda, the Court DENIES Petitioner's Motion to Withdraw Assigned Prosecutors and Reappoint New Prosecutors to Pending § 2255 Proceedings, and Abey Proceeding Pending Disposition of Motion to Recuse Judge From § 2255 Proceedings. (Doc. # 332.)

BACKGROUND

On April 21, 2008, a jury found Petitioner Silver Jose Galindo ("Petitioner") guilty of four counts of Felon in Possession of a Firearm and/or Ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); two counts of Possession with Intent to Distribute 5 Grams or More of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and two counts of Possession of a Firearm During and in Relation to a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c)(1). (Doc. # 256, Doc. # 287.) On October 6, 2008, this Court sentenced Petitioner to a total of thirty-nine years and two months for those counts. Petitioner's conviction and sentence were affirmed by the U.S. Court of Appeals on February 25, 2010. (Doc. # 317.) The Supreme Court denied Petitioner's petition for a writ of certiorari on October 4, 2010. (Doc. # 321.)

On October 3, 2011, Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Habeas Motion"). ("Habeas Mot.," Doc. # 322-1.) On October 3, 2011, Petitioner filed a Motion for Recusal of Judge David Alan Ezra ("Motion for Recusal"). (Doc. # 323.) On October 5, 2011, the Court referred the Motion for Recusal to Chief Judge Mollway and ordered that in the interim the habeas proceeding be stayed. (Doc. # 324 at 2.) On October 6, 2011, Chief Judge Mollway assigned the Motion for Recusal to U.S. District Judge Kobayashi. (Doc. 325.)

On November 7, 2011, Petitioner filed the instant Motion to Withdraw Assigned Prosecutors and Reappoint New Prosecutors to Pending § 2255 Proceedings, and Abey Proceeding Pending Disposition of Motion to Recuse Judge From § 2255 Proceedings ("Motion"). ("Mot," Doc. # 332.)

On November 15, 2011, Judge Kobayashi issued an Order Denying

Petitioner's Motion for Recusal of Judge. (Doc. # 335.)

On December 2, 2011, the Government filed a Response in Opposition to Petitioner's Motion to Withdraw Assigned Prosecutors ("Opposition"). ("Opp'n," Doc. # 338.)

On December 2, 2011, Petitioner filed a Notice of Appeal regarding Judge Kobayashi's Order Denying Petitioner's Motion for Recusal of Judge. (Doc. # 339.) On December 7, 2011, the Court issued an Electronic Order staying all proceedings in the action in light of the Notice of Appeal. (Doc. # 341.)

On January 3, 2012, Petitioner filed a Reply to the Government's Opposition to the instant Motion to Withdraw Assigned Prosecutors ("Reply"). ("Reply," Doc. # 345.)

On February 16, 2012, the Ninth Circuit issued an Order dismissing Petitioner's Appeal for lack of jurisdiction. (Doc. # 348.) On February 21, 2012, the Court issued an Order lifting the stay and directing the Government to file a response to Petitioner's motion under 28 U.S.C. § 2255. (Doc. # 349.)

DISCUSSION

I. Withdrawal of ...


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