Ceja v. United States of America

Filing 18

ORDER granting Petitioner's 16 Sealed Motion for issuance of a witness subpoena and authorizing counsel to issue a Rule 45 subpoena to Mr. Phillip Turner for the evidentiary hearing on December 13, 2016; and noting that this order is not sealed as it is not issued pursuant to Fed. R. Crim. P. 17(b); and, therefore, directing the Clerk to unseal Petitioner's 16 motion. Signed by Judge Brian K. Epps on 12/5/2016. (jah) Modified on 12/5/2016 (jah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JAMIE CEJA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV 115-018
(Formerly CR 111-359)

ORDER
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Before the Court is Petitioner’s ex parte motion for issuance of a witness subpoena
without expense to him, pursuant to Fed. R. Crim. P. 17(b). (Doc. no. 16.) Petitioner seeks
to subpoena Mr. Phillip Turner for the evidentiary hearing on December 13, 2016. (Id.)
Petitioner further represents he is both financially unable to pay the costs and fees of the
witness, and the presence of the witness is necessary. (Id.)
Here, Petitioner’s request is not properly brought pursuant to Fed. R. Crim P. 17(b)
because a § 2255 proceeding is a civil disposition of a completed criminal proceeding. See
Johns v. United States, No. CIV.A. 09-0386-WS-C, 2011 WL 1344245, at *1 (S.D. Ala. Apr.
8, 2011) (declining to issue ex parte subpoenas pursuant to Fed. R. Crim. P. 17(b) in § 2255
proceeding). Instead, a motion under Rule 45 of the Federal Rules of Civil Procedure is the
proper vehicle by which Petitioner may obtain a subpoena. (Id.) Petitioner has established
his indigency and demonstrated Mr. Turner’s testimony is relevant. Accordingly, the Court
GRANTS Petitioner’s motion and authorizes counsel to issue a Rule 45 subpoena to the

witness and command his appearance for the purpose of giving testimony at the December
13th evidentiary hearing. The fees of the witness shall be paid by the “United States Marshal
for the district . . . (2) on the certificate of the clerk of the court upon the affidavit of such
witnesses’ attendance given by [Petitioner’s counsel] . . . .” See 28 U.S.C. § 1825(b)(2).
This order is not sealed as it is not issued pursuant to Fed. R. Crim. P. 17(b), and the
Court DIRECTS the CLERK to unseal Petitioner’s motion. (Doc. no. 16.)
SO ORDERED this 5th day of December, 2016, at Augusta, Georgia.

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