DAVIS v. USA

Filing 4

ENTRY - CASTRO NOTICE ; The court determined that the filing of December 20, 2012, seeks relief within the scope of ' 2255. That document has been processed accordingly and was filed on March 1, 2013, as a motion pursuant to 28 U.S.C. & #039; 2255. This Entry constitutes and supplies the movant with the notice to which he is entitled. The movant shall have through April 15, 2013, in which to either supplement his motion filed on March 1, 2013, with a complete statement of the claims and grounds on which he could and does challenge his conviction and/or sentence or withdraw such motion insofar as it could be thought to seek relief authorized by 28 U.S.C. ' 2255. He may, in the alternative, notify the court that th e filing of March 1, 2013, does constitute a complete statement of the claims and grounds on which he could and does challenge his conviction and/or sentence. The clerk shall include with the movant's copy of this Entry a copy of the March 1, 2013, filing. Signed by Judge Sarah Evans Barker on 3/18/2013. Copy Mailed. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
GARY DAVIS,

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Movant,
vs.
UNITED STATES OF AMERICA.

1:13-cv-359-SEB-DML

Castro Notice
I.
A court may grant relief from a federal conviction or sentence pursuant to 28
U.S.C. ' 2255 "upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.@ A[A]ny paper asking
for the relief provided by ' 2255 & 1 is a motion under ' 2255, without regard to its
caption or other details.@ Ellzey v. United States, 324 F.3d 521, 524 (7th Cir. 2003)
(citing cases).
The court determined that the filing of December 20, 2012, seeks relief within
the scope of ' 2255. That document has been processed accordingly and was filed on
March 1, 2013, as a motion pursuant to 28 U.S.C. ' 2255.
II.
Because of the manner in which this action was opened, the movant is
entitled to notice of the treatmentBwhich has already been issuedBand notice that
any subsequent motion pursuant to ' 2255 is subject to restrictions. He must also be
afforded the opportunity to withdraw or amend the motion to include all ' 2255
claims which the pro se movant believes he has. Castro v. United States, 540 U.S.
375, 383 (2003). The court intends that the movant have this opportunity.
AA post-judgment motion [in a criminal action in federal court] needs a source
of authority for the judge to act. . . .@ United States v. Scott, 414 F.3d 815, 816 (7th
Cir. 2005). This is because "[a] district court does not have inherent authority to
modify a previously imposed sentence; it may do so only pursuant to statutory
authorization." United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997); see
also United States v. Krilich, 257 F.3d 689, 693 (7th Cir. 2001).

Because of the circumstance just described, it is important that a defendant
seeking relief pursuant to ' 2255 set forth all claims and grounds on which he seeks
relief. The failure to do so jeopardizes the defendant's potential opportunity to
present a claim which is omitted from the first such motion. As explained in In Re
Davenport, 147 F.3d 605, 610 (7th Cir. 1998), A[t]he amended section 2255 gives a
convicted defendant only one further bite at the apple after his direct appeal unless
he can demonstrate a compelling reason, as defined in the section (newly discovered
evidence of innocence or a new and retroactive rule of constitutional law)@ for being
allowed another bite. Id.
A defendant in the position of the movant, having filed a post-sentencing
challenge which is within the scope of ' 2255 but which is not expressly brought
pursuant to that statute, is entitled to notice of the foregoing.
This Entry constitutes and supplies the movant with the notice to
which he is entitled.
III.
The movant shall have through April 15, 2013, in which to either
supplement his motion filed on March 1, 2013, with a complete statement of the
claims and grounds on which he could and does challenge his conviction and/or
sentence or withdraw such motion insofar as it could be thought to seek relief
authorized by 28 U.S.C. ' 2255. He may, in the alternative, notify the court that the
filing of March 1, 2013, does constitute a complete statement of the claims and
grounds on which he could and does challenge his conviction and/or sentence.
The clerk shall include with the movant’s copy of this Entry a copy of the
March 1, 2013, filing.
IT IS SO ORDERED.

03/18/2013
Date: __________________
Distribution:

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Gary Davis, #09414-028
Greenville Correctional Institution
P.O. Box 5000
Greenville, IL 62246
NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.