Gates v. USA

Filing 2

ORDER directing the government to respond to petitioner's 1 Motion to Vacate/Set Aside/Correct Sentence (2255), attaching all relevant portions of the record, within 30 DAYS.. Signed by Judge William D. Stiehl on 05/29/2013. (jst)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN GATES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)

CASE NO. 13-CV-452-WDS

ORDER
STIEHL, District Judge:
Before the Court is petitioner Calvin Gates’ pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 (Doc. 1). The Court has completed a preliminary review of the
motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States
District Courts.
In January, 2012, petitioner pleaded guilty, pursuant to a plea agreement, to conspiring
with others to knowingly and intentionally distribute, and possessing with intent to distribute, a
mixture or substance containing cocaine base, in the form commonly known as “crack,” in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. On May 21, 2012, petitioner was
sentenced to 120 months in prison.
Petitioner now claims (1) he was denied effective assistance of counsel because counsel
did not inform petitioner that the amount of controlled substance attributed to petitioner would be
“arbitrarily increased by 800%,” subjecting petitioner to a substantially increased period of
incarceration; and (2) petitioner’s plea was not knowingly or intelligently made, and was made
without an understanding of the consequences of the plea because he believed he was pleading to
possession of 50 grams of crack cocaine, but the amount attributed to petitioner was changed to
420 grams without his agreement.
Because this is only a preliminary review, the Court has not considered the merits of

petitioner’s claims or whether they have been procedurally defaulted. See generally McCleese v.
United States, 75 F.3d 1174 (7th Cir. 1996); Massaro v. United States, 538 U.S. 500 (2003).
Accordingly, the Court ORDERS the Government to respond to petitioner’s motion (Doc.
1), attaching all relevant portions of the record, within 30 DAYS.

IT IS SO ORDERED.
DATE: May 29, 2013
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE

2