Mixon v. USA

Filing 5

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that within fourteen (14) days from the date of this Memorandum and Order, movant must either withdraw the instant petition for writ of certiorari or consent to the Court's reclassification of the motio n as one brought pursuant 28 U.S.C. § 2255. Movant shall advise the Court of his choice, in writing. IT IS FURTHER ORDERED that if movant decides to pursue this action under 28 U.S.C. § 2255, he must file an amended motion to vacate on a co urt provided form within fourteen (14) days of the date of this Memorandum Order. IT IS FURTHER ORDERED that movants failure to file an amended motion to vacate within fourteen (14) days of the date of this Memorandum and Order will result in a dismi ssal of this action, without prejudice. IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy ofthe Court's form Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or CorrectSentence. Response to Court due by 10/24/2012. Signed by District Judge Stephen N. Limbaugh, Jr on 10/10/12. (MRS) (copy of 2255 forms sent with order) Modified on 10/10/2012 (MRS).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICKY MIXON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:12CV141 SNLJ

MEMORANDUM AND ORDER
Before the Court is movant’s response to the Court’s August 29, 2012
Memorandum and Order.1 Because movant has failed to comply with the instructions
set forth in the Court’s Memorandum and Order, the Court will provide movant with
an additional fourteen (14) days from the date of this Memorandum and Order to either
withdraw his “petition for writ of certiorari” currently before the Court, or to consent
to the Court’s reclassification of the petition as one brought under 28 U.S.C. § 2255.2
Movant’s failure to take action or comply with this Court’s Memorandum and Order
will result in a dismissal of his case, without prejudice, pursuant to Fed.R.Civ.P. 41.
1

Movant’s response consists of the following question: “Am I able to file the
first step direct appeal using the “Writ of Certiorari” as the layout for such appeal if
indeed I don’t already have one in the Eighth Circuit of Appeals?” The Court cannot
provide movant with legal advice.
2

If movant wishes to pursue this action under § 2255, he must file an amended
motion to vacate on a court-provided form within fourteen (14) days of the date of this
Memorandum and Order. Movant’s failure to do so will result in a dismissal of this
action, without prejudice.

Background
On May 9, 2012, movant plead guilty to a violation of 18 U.S.C. § 922(g)(1),
felon in possession of a firearm. On August 13, 2012, the Honorable Stephen N.
Limbaugh, Jr., sentenced movant to 120 months’ imprisonment and two years of
supervised release. See U.S. v. Mixon, 1:12CR8 (E.D. Mo.). Movant filed a notice of
appeal of his conviction on August 27, 2012.3
Movant’s “Writ of Certiorari”
In his petition for “writ of certiorari” currently before the Court, movant appears
to be alleging an ineffective assistance of counsel claim, asserting that the
enhancement effect of his prior convictions, as discussed in the presentence
investigation report, was never properly explained to him or objected to prior to
sentencing. Accordingly, movant asserts that his plea was unknowing and
involuntary. Movant claims that it was error to apply the sentencing enhancement
argued for by the government, and he seeks resentencing without the enhancement
effect of his prior convictions.
Discussion
3

It appears that movant’s direct appeal may still be pending before the Eighth
Circuit Court of Appeals. If, indeed, movant has a direct appeal currently pending, and
movant intends to bring the current matter pursuant to 28 U.S.C. 2255, he should be
warned that his § 2255 motion may have been prematurely filed, and therefore, may be
subject to dismissal. See Masters v. Eide, 353 F.2d 517, 518 (8th Cir.1965) (per
curiam) (“[o]rdinarily resort cannot be had to 28 U.S.C.A. § 2255 or habeas corpus
while an appeal from conviction is pending.”).
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As noted in the Court’s prior Memorandum and Order, before reclassifying the
instant petition as a § 2255 habeas corpus action, this Court afforded movant the
opportunity either to withdraw the petition or to consent to the Court’s reclassification
of the petition as a motion brought under 28 U.S.C. § 2255. See Morales v. United
States, 304 F.3d 764, 765 (8th Cir. 2002). However, movant failed to either withdraw
his petition or consent to the Court’s reclassification.
Consequently, before reclassifying the instant action as a § 2255 motion, the
Court will again offer movant an opportunity either to withdraw his petition or to
consent to the Court’s reclassification of the petition as a motion to vacate brought
under 28 U.S.C. § 2255. However, as movant has already been provided more than
thirty (30) days to consent to the reclassification, the Court will provide movant a
shortened time-period of fourteen (14) days from the date of this Memorandum and
Order to either withdraw the instant petition for “writ of certiorari” or consent to the
Court’s reclassification of the motion as one brought pursuant 28 U.S.C. § 2255. If
movant wishes to pursue the instant action as a § 2255, he must also file an amended
motion to vacate on a court-provided form within fourteen (14) days of the date of this
Memorandum and Order. His failure to do so will result in a dismissal of this action,
without prejudice.
Accordingly,

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IT IS HEREBY ORDERED that within fourteen (14) days from the date of
this Memorandum and Order, movant must either withdraw the instant petition for
“writ of certiorari” or consent to the Court’s reclassification of the motion as one
brought pursuant 28 U.S.C. § 2255. Movant shall advise the Court of his choice, in
writing.
IT IS FURTHER ORDERED that if movant decides to pursue this action
under 28 U.S.C. § 2255, he must file an amended motion to vacate on a courtprovided form within fourteen (14) days of the date of this Memorandum Order.
IT IS FURTHER ORDERED that movant’s failure to file an amended motion
to vacate within fourteen (14) days of the date of this Memorandum and Order will
result in a dismissal of this action, without prejudice.
IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy of
the Court’s form Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence.
Dated this 10th day of October, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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