Barnes v. USA
Filing
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ORDER DENYING 5 MOTION for Request of Disclosure of Records by Clerk Pursuant to 28 U.S.C. §2250 filed by John A. Barnes; GRANTING 6 MOTION for Extension of Time to File Response/Reply as to 1 Motion to Vacate/Set Aside/Correct Sentence (2 255) filed by USA, the government SHALL file its response on or before 1/25/2013; GRANTING IN PART 7 MOTION to Amend/Correct 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by John A. Barnes. The Clerk of the Court is DIRECTED to send to petitioner, via U.S. Mail, the form for filing a motion and affidavit to proceed in the district court without prepaying fees or costs. The Clerk of the Court is DIRECTED to mail a copy of this Order to Charles H. Stegmeyer,Jr. Signed by Judge William D. Stiehl on 12/28/2012. (jst)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN A. BARNES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL NO. 11-CV-1082-WDS
CRIMINAL NO. 10-CR-30004-WDS
ORDER
STIEHL, District Judge:
Before the Court is petitioner’s motion for records, requesting that the Court direct the Clerk
of the Court to provide him with particular documents (Doc. 5). Specifically, petitioner requests
from the record of his criminal proceeding (United States v. Barnes, No. 3:10-CR-30004-WDS): (1)
the information establishing prior convictions (Docs. 22, 23); (2) transcripts of the change of plea
hearing (Doc. 351); (3) plea agreement (Doc. 36); (4) stipulation of facts (Doc. 37); and (5)
sentencing transcripts (Doc. 452). Petitioner filed an additional motion in his criminal case,
requesting his sentencing transcript, enhancements, plea bargain, and docket sheet (Case No. 10-CR30004-WDS, Doc. 63).
Also before the Court is the government’s motion for extension of time to file a response to
petitioner’s motion (Doc. 6), petitioner’s motion to amend (Doc. 7), and petitioner’s memorandum
in support of his motion to amend (Doc. 8), which the Court will consider infra.
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Document 35 is not, in fact, the plea transcript, but is the minute entry for the change of plea
hearing. On November 9, 2012, the transcript of the change of plea hearing was filed at Doc. 61.
2
Document 45 is not the sentencing transcript, but is the minute entry for the sentencing hearing.
On November 9, 2012, the transcript of the sentencing hearing was filed at Doc. 62.
Petitioner asserts that the requested documents are necessary so that he may factually
supplement or amend his initial claims of ineffective assistance, and avoid, in petitioner’s terms, the
“likely possibility that his § 2255 may be denied because it only states ‘conclusory allegations.’”
(Doc. 5).
In his initial petition, he stated claims of ineffective assistance of counsel for (1) failing to
object to the career offender sentencing enhancement which was based, in part, on an Illinois assault
conviction from 1998; (2) failing to timely file a notice of appeal; and (3) failing to object to the
career offender guidelines, which amounted to a sentence which was cruel and unusual punishment.
On September 10, 2012, this Court directed the government to respond to these claims (Doc. 3).
Petitioner now seeks to supplement these claims with facts from the requested documents.
The Southern District of Illinois instructions for filing a motion to vacate, set aside, or
correct a sentence by a person in federal custody provides, at paragraph 5:
You do not need to pay a filing fee to file this motion. If you need a transcript of
the proceedings related to your motion and cannot afford to pay for it, you must file
a motion asking to proceed in forma pauperis (as a poor person). A sample motion
to proceed in forma pauperis may be obtained from the Clerk of Court at the address
below. You must also submit a certificate signed by an officer at the institution
where you are confined showing the amount of money that the institution is holding
for you and file a motion asking for the transcript under 28 U.S.C. §753(f). A judge
must certify that your motion is not frivolous and that the transcript is needed to
decide the issue presented in the motion.
Furthermore, regarding copies of other documents, petitioner “may receive photocopies of
pleadings, documents, and papers filed in his case-whether filed by Plaintiff or any other party-but
only upon tendering the appropriate fees and costs to the Clerk of Court.” Wilkins v. Illinois
Dept. of Corrections, No. 08-cv-732-JPG, 2009 WL 4894588 at *1, (S.D. Ill. December 11, 2009).
According to 28 U.S.C. § 1914(b), “[t]he clerk shall collect from the parties such additional fees
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only as are prescribed by the Judicial Conference of the United States.” The Judicial Conference
Schedule of Fees section (4) provides that a fee of $.50 per page shall apply for reproducing any
record or paper.
Petitioner here has not provided payment for the copies requested, nor has he established in
forma pauperis (“IFP”) status. Furthermore, should petitioner establish IFP status, “it does not
allow him to automatically have a free copy of every pleading, document, or paper electronically
filed with this Court,” but, the Court may waive the copying fees for good cause shown. Wilkins,
2009 WL 4894588 at *1; see also, In re Richard, 914 F.2d 1526, 1527 (6th Cir. 1990) (“Although
the petitioner was granted leave to proceed in the district court as a pauper, that status waives only
‘prepayment of fees and costs and security ....’ 28 U.S.C. § 1915(a). It does not give the litigant a
right to have the documents copied and returned to him at government expense.”).
Petitioner has not established that he is indigent. Furthermore, he has not established that
he has exhausted all other means of access to the file, such as potentially obtaining the documents
from his trial counsel. See United States v. Wilkinson, 618 F.2d 1215, 1218-19 (7th Cir. 1980); Rush
v. United States, 559 F.2d 455, 458-59 (7th Cir. 1977). Attached to his original § 2255 motion is
a letter to Mr. Stegmeyer, whom petitioner retained as counsel during his criminal proceedings,
requesting certain documents from his criminal proceedings. Petitioner, in his motion, has requested
different documents from those noted in his letter, and has not informed the Court that he has
attempted to procure these documents from his trial attorney, but has been unable. Moreover,
petitioner has, since filing his motion for copies (Doc. 5), filed a motion to amend (Doc. 7) and
memorandum in support (Doc. 8), apparently without the aid of the requested documents. The Court
is unsure, therefore, whether the documents are even necessary for petitioner’s purposes at this
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stage.
Accordingly, petitioner must either pay the appropriate fee for the copies he seeks, or file
a motion with this Court to proceed IFP and show good cause for this Court to waive the copying
fees. The Clerk of the Court is DIRECTED to send to petitioner, via U.S. Mail, the form for filing
a motion and affidavit to proceed in the district court without prepaying fees or costs.
The Court, therefore, DENIES petitioner’s motion for request of disclosure of records (Doc.
5) at this time. The motion for copies filed in his criminal case, 10-CR-30004-WDS, Doc. 63, is also
DENIED at this time.
After the Court directed the government to respond to petitioner’s initial petition on
September 10, 2012, petitioner filed a memorandum in support of his § 2255 petition (Doc. 4), the
motion for copies noted supra (Doc. 5), a motion to amend his § 2255 petition (Doc. 7), and a
memorandum in support of his motion to amend (Doc. 8).
In petitioner’s supplement, filed September 24, 2012 (Doc. 4), petitioner raises the following
new claims of ineffective assistance of counsel: (1) failure to invoke Fed. R. Crim. P. 11(c)(1)(C)
during plea negotiations, which resulted in the government seeking a career offender sentencing
enhancement; and (2) counsel’s erroneous advice rendered the plea involuntary and not knowingly
entered. He also asserts that he may be entitled to a sentence reduction based on Dorsey v. United
States, 132 S.Ct. 2321 (June 21, 2012). “An amended habeas petition, . . . , does not relate back (and
thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by
facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545
U.S. 644, 649 (2005). At first glance, these new arguments do not appear to relate back to
petitioner’s timely petition. In its response, the Government SHALL address whether the arguments
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contained in Doc. 4 are timely.
On November 26, 2012, petitioner filed a motion to amend his § 2255 motion (Doc. 7). In
this motion, petitioner requests that the Court amend his initial petition to add the arguments
contained in Document 7. For grounds I and II, petitioner appears to add facts or arguments with
respect to his original timely claims, and the Court, therefore GRANTS IN PART petitioner’s
motion to amend, and allows the requested changes contained in Document 7 as to grounds I and
II of the original petition.
Ground III of the motion to amend, however, refers to a claim that petitioner appears to have
first raised in his supplement, and therefore, it may be untimely. The government, in its response,
SHALL address whether this amendment would be timely, and the Court RESERVES RULING
on this portion of petitioner’s motion to amend. Additionally, petitioner seeks to add an additional
ground for relief, specifically, that he has attempted to rehabilitate himself by completing a number
of rehabilitation programs which may allow the Court to depart from the career offender guidelines.
The government, in its response, SHALL address whether this amendment would be timely, and the
Court RESERVES RULING on this portion of petitioner’s motion to amend.
Furthermore, in petitioner’s supplemental memorandum in support of his motion to amend
(Doc. 8), petitioner does not enumerate his claims to match his motion to amend or his other
previous pleadings. In this supplement, petitioner argues (1) counsel was ineffective for failing to
inform petitioner that by entering the plea he waived his rights to appeal, and the plea was, therefore,
not knowingly entered. This argument relates to an argument first raised in petitioner’s supplement,
and the government has already been directed to address whether this claim is timely. Next,
petitioner argues, for the first time, that counsel was ineffective for failing to advise petitioner that
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he stipulated to possessing a dangerous weapon. In it’s response, the government SHALL address
whether this claim is timely. In section II of petitioner’s memorandum, he argues that counsel was
ineffective for failing to object to the career offender enhancement. These arguments relate back
to petitioner’s original § 2255 petition, and the Court will, therefore, consider them, and the
government shall respond appropriately. Section III of petitioner’s memorandum consists of
arguments in support of his claim that counsel was ineffective for failing to file a notice of appeal.
These arguments relate back to petitioner’s original § 2255 petition, and the Court will, therefore,
consider them, and the government shall respond appropriately.
The government’s motion for extension of time to file a response (Doc. 6) is GRANTED,
and the government SHALL file its response, in accordance with this Order and the Court’s
previous Order directing it to respond (Doc. 3), on or before January 25, 2013. Petitioner SHALL
file a reply, if any, within 30 DAYS of the government’s response.
The Clerk of the Court is DIRECTED to mail a copy of this Order to Charles H. Stegmeyer,
Jr.
IT IS SO ORDERED.
DATE: December 28, 2012
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE
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