Stein v. USA

Filing 3

MEMORANDUM AND ORDER Directing Government to respond to the Section 2255 motion; Denying as moot 2 MOTION for Leave to File. Signed by Judge J. Phil Gilbert on 1/4/2010. (jwt)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS RYAN STEIN, Petitioner/Defendant, vs. UNITED STATES of AMERICA , Respondent/Plaintiff. ) ) ) ) ) ) ) ) )

CIVIL NO. 09-cv-398-JPG CRIMINAL NO. 05-cr-40033

MEMORANDUM AND ORDER GILBERT, District Judge: This matter is before the Court on Petitioner's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). Also before the Court is Petitioner's motion to amend his § 2255 action (Doc. 2). Petitioner was found guilty, after a jury trial, of conspiring to manufacture and distribute more than 50 grams of a substance containing methamphetamine. On March 1, 2007, Petitioner was sentenced to 240 months imprisonment, 10 years supervised release, a fine of $400, and a special assessment of $100. Petitioner's sentence were affirmed on direct appeal. United States v. Stein, Case No. 07-1510 (7th Cir. Dec. 14, 2007). Petitioner's application for a writ of certiorari to the Supreme Court of the United States was denied. Stein v. United States, 128 S.Ct. 2523 (May 27, 2008). In his § 2255 motion, Petitioner raises 9 grounds of alleged ineffective assistance of counsel. Additionally, Petitioner contends that his conviction and sentence vilate the First, Fourth, Fifth,

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Sixth, and Eighth Amendments. The rules governing § 2255 proceedings contain no provision for making amendments, so instead courts look to Federal Rule of Civil Procedure 15 for guidance by analogy. See Sec. 2255 R. 12; Johnson v. United States, 196 F.3d 802, 805 (7th Cir.1999). Rule 15 permits a party to amend its pleading once as a matter of course before being served with a responsive pleading. Fed R. Civ. P. 15(a)(1)(A). The Government has yet to file a responsive pleading in this case and, therefore, leave from the Court to file an amended motion is not - as of this date - required. Accordingly, Petitioner's motion to amend his motion (Doc. 2) will be DENIED, without prejudice, as moot. The Court ORDERS the Government to file a response to Petitioner's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record. IT IS SO ORDERED. Dated: January 4, 2010. s/ J. Phil Gilbert U. S. District Judge

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