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 )

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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 ) ) v. ) Case No.: 1:14-cr-85-KOB-JHE-1 ) ROY DANIEL ELLENBURG ) 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 1 Ini tials: Gi) 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. 2 Initials: ~ Case 1:14-cr-0008~OB-JHE Document 35 Filed 121031~+ Page 3 of 4 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. 3 Initials: W Case 1:14-cr-0008~t(OB-JHE Document 35 Filed 12/03/ . . . 4 Page 4 of 4 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 4 Initials: ~

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