Rainer v. United States of America (INMATE 3)
ORDER directing US Attorney to file a response to petitioner's 2 §2255 Motion on or before 8/12/2011, as further set out in order; DIRECTING the CLERK to serve a copy of petitioner's §2255 motion upon the US Attorney for the ALMD. Signed by Honorable Judge Susan Russ Walker on 7/13/2011. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
Civil Action No. 2:11cv414-MEF
On June 6, 2011 (Doc. No. 3), this court entered an order in accordance with Castro
v. United States, 540 U.S. 375 (2003), advising the petitioner of its intention to
recharacterize his pro se “Motion to Dismiss an Indictment,” filed with this court on May
17, 2011 (Doc. No. 2), as a motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. The court cautioned the petitioner that such recharacterization would render
the motion and any subsequent § 2255 motion susceptible to the procedural limitations
imposed upon § 2255 motions, specifically the one-year period of limitation and the
successive-petition bar applicable to post-conviction motions. In addition, as required by
Castro, the court ordered that on or before July 6, 2011, the petitioner should advise the
court that he seeks to do one of the following:
1. Proceed before this court pursuant to 28 U.S.C. § 2255 on those
claims presented in his motion (Doc. No. 2);
2. Amend his motion to assert any additional claims pursuant to 28
U.S.C. § 2255 on which he wishes to challenge the conviction and sentence
imposed upon him by this court; or
3. Withdraw his motion.
(Doc. No. 3 at 3.) The court also advised the petitioner that if he failed to file a response in
compliance with its order, which required that he advise the court that he wished to do one
of the above, this cause shall proceed as an action under 28 U.S.C. § 2255, with the court
considering only those claims presented in his original motion. (Id.)
The requisite time has passed, and the petitioner has filed nothing with this court in
response to the court’s order. Accordingly, this cause shall proceed as an action under 28
U.S.C. § 2255 and the court will consider only those claims presented in the motion filed by
the petitioner on May 17, 2011 (Doc. No. 2). The CLERK is hereby DIRECTED to serve
a copy of the petitioner’s §2255 motion upon the United States Attorney for the Middle
District of Alabama. The United States Attorney is
ORDERED to file a response to the petitioner’s motion on or before August 12,
2011. The government is advised that its response must address each claim presented by the
petitioner in the § 2255 motion.
In filing its response, the government shall identify and produce all documents
and court records relevant to the issues pending in this cause of action.
government should also indicate what transcripts are available, whether such
documents are a part of the original criminal record, and, if not, when they can be
furnished to the court. The government shall attach to its response those portions of the
trial record, including the plea agreement, guilty plea proceeding, and/or sentencing
transcript, that are pertinent to a determination of the issues presented in this cause of action.
In addition, if this court is barred from reviewing a petitioner’s claims due to his
failure to properly preserve such claims, the government shall identify the defaulted
claim(s) and provide a factual and legal basis for the procedural default argument.
Moreover, in filing its response, the government shall make specific reference to the portion
of 28 U.S.C. § 2255 that provides:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of-(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
The government is advised that its response should contain a detailed procedural history, all
relevant records, and citations to applicable case law from which the court can determine the
applicability of the limitation period contained in 28 U.S.C. § 2255.
The parties are advised that no motion for summary judgment, motion to
dismiss or any other dispositive motions addressed to the motion to vacate may be filed
by any party without permission of the court. If any pleading denominated as a
motion for summary judgment, motion to dismiss or other dispositive motion is sent
to the court, the court shall not file or otherwise treat the pleading as a dispositive
motion until and unless further order of the court.
The Federal Rules of Civil Procedure require that the petitioner mail to counsel for
the government a true copy of anything that is sent to the court. Consequently, the petitioner
is advised that he must mail to the United States Attorney for the Middle District of Alabama
a true copy of anything that he sends to the court.
Any document, pleading or
correspondence sent to the court should specifically state that it has been sent to the United
States Attorney for the Middle District of Alabama. Failure to comply with the directives
of this order may result in delaying resolution of this case. Moreover, the petitioner is
specifically CAUTIONED that her failure to file pleadings in conformity with the Federal
Rules of Civil Procedure and/or the directives contained in this order will result in such
pleadings not being accepted for filing. The CLERK is DIRECTED to not accept for filing
any pleadings submitted by the petitioner that are not in compliance with either the Federal
Rules of Civil Procedure or the directives contained in this order.
Done this 13th day of July, 2011.
/s/Susan Russ Walker
SUSAN RUSS WALKER
UNITED STATES MAGISTRATE JUDGE
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