French v. USA

Filing 4

MEMORANDUM AND ORDER, The Court ORDERS that the petitioner shall have up to and including October 21, 2016, to file a motion to withdraw her § 2255 motion and have it filed instead as a motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). Signed by Judge J. Phil Gilbert on 9/22/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LIBBY J. FRENCH,
Petitioner,
vs.

Case No. 16-cv-01031-JPG

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court sua sponte pursuant to Federal Rule of Civil
Procedure 59 to alter or amend its Judgment (Doc. 3) of September 21, 2016. The Court has
received several of these motions within the past month and all have incorrectly asserted that
Amendment 794 applies retroactively. The Court is concerned that this standard motion is being
distributed throughout the petitioner’s facility and that the petitioner was confused and selected
the wrong vehicle for her request although it was clearly labeled as a § 2255 motion. As a result,
she has subjected herself to the second or successive motion filing restrictions contained in 28
U.S.C. § 2255, ¶ 8, and she is unable to file another § 2255 motion without obtaining permission
from the Court of Appeals, which grants such permission only in limited circumstances.
Ordinarily, a defendant who believes she is entitled to a lower sentence based on a
retroactive guideline amendment will seek such a reduction under 18 U.S.C. § 3582(c)(2), not 28
U.S.C. § 2255. Therefore, upon reconsideration, the Court will give the petitioner an opportunity
to withdraw the petition and avoid the second or successive motion filing restrictions, and
instead have the motion filed in her criminal case under 18 U.S.C. § 3582(c)(2).

The Court therefore ORDERS that the petitioner shall have up to and including October
21, 2016, to file a motion to withdraw her § 2255 motion and have it filed instead as a motion for
a reduction of sentence under 18 U.S.C. § 3582(c)(2). If the petitioner fails to timely file a
motion to withdraw her § 2255 motion, the judgment of the Court will remain as entered.
IT IS SO ORDERED.
DATED: 9/22/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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