Barlow v. USA

Filing 2

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
TINA M. BARLOW,
Petitioner,
vs.

Civil Case No. 16-cv-1046-JPG

UNITED STATES OF AMERICA,

Crim. Case No. 12-cr-40054-JPG-4

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Tina M. Barlow’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In her motion, she seeks to
vacate her sentence because she believes Amendment 794 to the United States Sentencing
Guidelines Manual is retroactive on collateral review and entitles her to a lower sentence.
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.
The Court is concerned that the petitioner is confused and has selected the wrong vehicle
for her request and will, as a consequence, subject herself to the second or successive motion
filing restrictions contained in 28 U.S.C. § 2255, ¶ 8, that is, she will not be able to file another
§ 2255 motion without obtaining permission from the Court of Appeals, which grants such
permission only in limited circumstances. Rather than proceeding with the petition as filed –
clearly labeled as a § 2255 motion – 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 Court will consider it under § 2255 and will continue
with these § 2255 proceedings.
IT IS SO ORDERED.
DATED: September 22, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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