Ellenburg v. United States of America

Filing 1

MEMORANDUM OPINION AND ORDER For the reasons set out within, Defendant's motion (document 35 filed in 1:14-cr-85-KOB-JHE) is to be treated as follows: 1. The Clerk is DIRECTED to convert Defendants third motion, (doc. 35), into a motion to vaca te, set aside, or correct sentence under 28 U.S.C. § 2255; 2. The Clerk is FURTHER DIRECTED to serve a copy of this Order on Defendant, along with a copy of the § 2255 motion form, marked "Amended Motion," and identified with Defe ndants name and case number; and 3. Defendant is ORDERED to file an amended motion on the § 2255 motion form within thirty days of the date the Clerk files his motion as a § 2255. Signed by Magistrate Judge John H England, III on 12/17/14. (Attachments: # 1 Motion to Vacate/2255)(SAC )

FILED
Case 1:14-cr-00085~j{"OB-JHE

Document 35 Filed 12/03!J.""'t" Page 1 of 4

2014 Dec-18 AM 09:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
2014 Dec-04 PM 03:55

FILED

U.S. DISTRICT COURT
N.D. OF ALABAMA

~frEt;~TES

DISTRICT COURT
'NOR1tI~rtJoISTRICT OF ALABAMA
ZOI~ DEC - 3 sou,T~ErR2N DIVISION
A II

CV-14-BE-8061-E

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)

v.

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Case No.:
1:14-cr-85-KOB-JHE-1

)

ROY DANIEL ELLENBURG

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DEFENSE MOTION REQUESTING SPECIAL DISCOVERY HEARING

TO DETERMINE IF THE LEVEL OF COURT APPOINTED REPRESENTATION

WAS ADEQUATE, PURSUANT TO 18 U.S.C. § 3006A

COMES NOW, the accused ROY DANIEL ELLENBURG in PRO-SE by neces­
sity in the above styled action, within his rights to due processes
of law to be heard, and his Constitutionally protected "RIGHT" to
petition the government for a redress of grievances, and hereby MOVES
this court to demand the presence of the accused, the government's
attorney, all appointed defense attorneys, investigators for the
defense, and experts for the defense, to present to this court evi­
dence that the accused did in fact have "ADEQUATE" representation
pursuant to 18 U.S.C. § 3006A(a). In support, the accused shows
the court the following:
1) It is stated in 18 U.S.C. § 3006A(a) in part that, "Each

United States district cQurt... shall place in operation

throughout the district a plan for furnishing representation

for any person financially unable to obtain adeguate repre­

sentation in accordance with this section .•. Each plan shall

provide the following:"

2) 18 U.S.C. § 3006A(a)(1) states that tlRepresentation shall be

provided for any financially person who ..• "

3) 18 U.S.C. § 3006A(a)(1)(H) states that "is entitled to

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Case 1:14-cr-0008S¥OB-JHE Document 35 Filed 12/031.>-,

Page 2 of 4

appointment of counsel under the Sixth Amendment of the
Constitution ... "
4) In this action, the accused has been deprived of his liber­
ty due to [VOID] felony conviction and is therefore eligible
for the "ASSISTANCE" of counsel pursuant ot the Sixth Amend­
ment.
5) This court, on or about March 18, 2014, entered into record
a judicial determination that the accused was indigent and
unable to obtain adequate representation on his own.
6) The court as yet not made available to the accused ade­

quate representation pursuant to 18 U.S.C. § 3006A(a).

ARGUMENT
It is indisputable that this statute, enacted by Congress, makes
clear that the accused in any felony proceeding cannot be prejudiced
due to poverty, and the district court is responsible for not only
appointing representation, but upholding the rights of the accused
of adequate representation. Any district judge who finds that
court appointed counsel has failed in any way to provide adequate
counsel, such as:
1) Refuses to file motions for the defense;

2) Refuses to investigate the case for possible defenses;

3) Refuses to hire investigators and/or experts;

4) Refuses to take witness testimony;

5) Refuses to subpoena evidence; or

6) Fails to provide a defense for the accused in any other way;

Is duty bound to act pursuant to this statute, and appoint "ADEQUATE"
representation pursuant to 18 U.S.C. § 3006A.

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Case 1:14-cr-0008~OB-JHE

Document 35 Filed 121031~+

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DEFENSE MOTION TO APPOINT ADEQUATE COUNSEL

TO PETITION THE SUPREME COURT FOR

WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2241

The accused hereby moves this court to appoint ADEQUATE counsel
for the purpose of executing his petition to the Supreme Court of
the United States for Writ of Habeas Corpus, as it is clear that
the accused is imprisoned in violation of the Constitution of the
United States. The defense shows the court the following:
1) The accused is convicted based upon:
A) Plead under duress and threat.
B) Accused denied First Amendment right to petition the gov­
ernment for redress of grievances.
C) District court failed to appoint adequate representation.
D) Conflict of interest for defense counsel to file Notice
of Appeal for Ineffective Assistance of Counsel against
himself; etc •.•
2) The accused requests that this court expedite its response
to this motion as it may be necessary to prepare his Notice
of Appeal to the Supreme Court of the United States.
WHEREFORE, above premises considered, the accused MOVES this
court to ISSUE an ORDER granting this [his] motion and all relief
required herein, and all other relief required by LAW, LIBERTY,
and EQUITY.

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Case 1:14-cr-0008~t(OB-JHE

Document 35 Filed 12/03/ . . . 4

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Done This 28th Day of November, 2014
Respectfully Submitted,

Roy Daniel Ellenburg, PRO-SE
31541-001
Federal Correctional Institution
P.O. Box 5000
Oakdale, LA 71463
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have served a copy
of this pleading upon the Clerk of the Court, properly addressed,
First-Class Postage prepaid. The accused further requests that a
copy of this [his] motion be forwarded to all parties as he is
detained, indigent, and has no other means.
Done This 28th Day of November, 2014
Respectfully Submitted,

Roy Daniel Ellenourg, PRO-SE
31541-001
Federal Correctional Institution
P.O. Box 5000
Oakdale, LA 71463

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