Ziglar v. United States of America (INMATE3)

Filing 86

ORDER; that on or before October 18, 2010, the petitioner may file a reply to the response filed by the government. Signed by Honorable Susan Russ Walker on 9/27/2010. (jg, )

Z i gl a r v. United States of America (INMATE3)

Do c. 86

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O E CARROLL ZIGLAR, P e titio n e r, v. U N IT E D STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:07cv632-MEF (WO)

ORDER P u r s u a n t to the orders of this court, the United States has filed a response (Doc. No. 8 4 ) addressing (1) whether the petitioner's instant motion constitutes a successive motion u n d e r 28 U.S.C. § 2255 and the claims in the motion are successive within the meaning of 2 8 U.S.C. § 2255; and (2) whether any claims in the petitioner's motion are properly raised u n d e r Fed.R.Civ.P. 60(b), and, if so, whether those claims entitle the petitioner to any relief. In its response, the government argues that the petitioner's allegation of fraud against the c o u rt ­ in the form of a conspiracy between the United States Attorney, the probation office, a n d his own defense counsel ­ is merely an attempt on the petitioner's part to relitigate the c o m p e te n c y issues raised in his initial § 2255 motion, placed before this court at a hearing o n the § 2255 motion, and considered by this court in its denial of the petitioner's claims of in e f fe c tiv e assistance of counsel. (Doc. No. 84 at 3-4.) The government further argues that th e pleadings and record in this case establish that the petitioner was in possession of his

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a tto rn e y's notes that he claims demonstrate fraud prior to the hearing on his § 2255 motion a n d that the notes were actually used by his counsel at that hearing on the § 2255 motion. T h e government contends that because there was no fraud as alleged by the petitioner, his c la im s are not properly raised under Rule 60(b) and his motion should be construed as a su c c e ss iv e § 2255 motion, which is should be dismissed because the petitioner has failed to o b ta in the requisite order from the Eleventh Circuit permitting this court to consider the c la im s within his motion. See 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is O R D E R E D that on or before October 18, 2010, the petitioner may file a reply to the re sp o n se filed by the government. D o n e this 27 th day of September, 2010.

/s/Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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