United States of America V. Gaya

Filing 29

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 8/12/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSE GAYA #19152-424
Defendant.

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No. 12 C 9268
06 CR 896
usca No. 13-1830

MEMORANDUM ORDER
This Court inherited, via random assignment, the
responsibility to address the 28 U.S.C. § 2255 (“Section 2255”)
motion that had been filed pro se by Jose Gaya (“Gaya”), because
this Court’s former colleague Honorable Wayne Andersen -- who had
handled that defendant’s conviction and sentencing -- had retired
from this District Court.

After it dismissed Gaya’s Section 2255

motion, followed by Gaya’s appeal from that decision, this Court
has been attempting for months to get the necessary information
as to the transactions in Gaya’s custodial trust fund account so
that it could make the in forma pauperis determination prescribed
by 28 U.S.C. § 1915 (“Section 1915”).
This Court’s most recent memorandum order, issued on July
17, 2013,1 has briefly recapped the history of those efforts and
the still-deficient nature of Gaya’s most recent filing in
response, and it then requested Gaya’s custodial institution as

1

Solely for informational purposes, a copy of that
memorandum order is attached.

well as Gaya himself to deliver the still-missing information.
More than three weeks have elapsed since that most recent request
-- again with no response.
Although it appears quite certain that Goya will qualify for
in forma pauperis status in the special sense prescribed for
prisoners by Section 1915 (that is, excusing the full payment of
filing and other fees up front, but requiring such full payment
in the future on an installment basis), this Court has been and
still is unable to make the calculation required by Section 1915
because of the noncompliance with this Court’s requests by both
Gaya and his custodial institution.

Accordingly, at the request

of our Court of Appeals, this Court respectfully refers the issue
of Gaya’s entitlement or lack of entitlement to in forma pauperis
treatment to that Court for its determination.

___________________________________
Milton I. Shadur
Senior United States District Judge
Dated:

August 12, 2013

Case: 1:12-cv-09268 Document #: 27 Filed: 07/17/13 Page 1 of 3 PageID #:144

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSE GAYA #19152-424,
Defendant.

)
)
)
)
)
)
)
)
)

No.

12 C 9268
06 CR 896
USCA No. 13-1830

MEMORANDUM ORDER
Jose Gaya (“Gaya”) is presently before our Court of Appeals,
seeking to challenge this Court’s dismissal of his 28 U.S.C.
§2255 (“Section 2255”) motion attacking his conviction before,
and the sentence imposed by, this Court’s former colleague
Honorable Wayne Andersen.

That Section 2255 motion was filed

after Gaya had pursued an unsuccessful direct appeal to our Court
of Appeals (647 F.3d 634)(7th Cir. 2011)) by which time Judge
Andersen had retired and the motion was reassigned at random to
this Court’s calendar.
This Court’s June 20, 2013 memorandum order, after reviewing
the procedural background of Gaya’s case, recounted Gaya’s
apparent failure to have provided, by the June 12 date specified
in an earlier (May 22) memorandum order, the information as to
transactions in his custodial trust fund account (information
necessary to make the in forma pauperis determination prescribed
by 28 U.S.C. §1915 (“Section 1915”)).

What this Court was then

totally unaware of was that the Clerk’s Office of this District

Case: 1:12-cv-09268 Document #: 27 Filed: 07/17/13 Page 2 of 3 PageID #:145

Court had in fact received--on June 13--a filing by Gaya
captioned “Notice of Inadvertent Error by Defendant and
Correction,” which had included some of that information.
This Court has no idea why the Clerk’s Office, despite
Gaya’s filing having properly listed the case number in this
District Court (12 C 9268) as well as his underlying criminal
case number (06 CR 896) and the Court of Appeals case number
(13-1830), never bothered to deliver a copy of Gaya’s filing to
this Court’s chambers.

That, however, was far from the only

glitch in the proceedings--and this memorandum order therefore
turns to the still-deficient nature of Gaya’s most recent filing.
Although Gaya’s June 13 submission included three pages
printed out by the staff at Memphis F.C.I., where Gaya is serving
his sentence, those pages don’t cover the relevant six-month
period that preceded Gaya’s filing of his notice of appeal (the
period from October 13, 2012 through April 12, 2013):
1.

One page covers the time frame from September 6,

2012 to October 11, 2012, so that the transactions reported
there are totally irrelevant.
2.

As for the other two pages, they span the time

frame that began February 23, 2013 and ended June 6, 2013.
In sum, the required information from October 13, 2012 to
February 22, 2013 is still missing.
There is frankly no excuse for what has taken place (or more

2

Case: 1:12-cv-09268 Document #: 27 Filed: 07/17/13 Page 3 of 3 PageID #:146

accurately, what has not taken place) here.

In an effort to

avoid further mistakes, this Court is sending copies of this
memorandum order (1) directly to the fiscal people at Memphis
F.C.I. so that they may provide the missing information
forthwith, with all three case numbers to be designated on their
transmittal,1 and also (2) directly to the Clerk of this District
Court, who can be counted on to have his underlings deliver a
copy of the requested information to this Court’s chambers
immediately upon its receipt.

If that works as it should, this

Court will swiftly comply with the provisions of Section 1915.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

July 17, 2013

1

That transmittal should be addressed:
Clerk, United States District Court
219 South Dearborn Street - 20th Floor
Chicago IL 60604
Attention: Fiscal Department
3