Swim v. USA

Filing 2

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Clerk of Court is directed to forward a copy of movant's § 2255 motion to the Office of the Public Defender for the Southeastern District of Missouri. IT IS FURTHER ORDERED that the Public Defender shall notify this Court, within forty-five (45) days of the date of this Memorandum and Order, whether it will be pursuing movant's arguments under Johnson, either by filing a written notice in this action of their intent not to repres ent movant, or by filing an amended motion to vacate, brought pursuant to 28 U.S.C.§ 2255, also in this action, or a request in the Court of Appeals for leave to bring a successive § 2255 motion, as required by 28 U.S.C. § 2244(b)(3). IS FURTHER ORDERED that the Court shall hold this matter in abeyance for forty-five ( 45) days. Response to Court due by 3/6/2017. Signed by District Judge John A. Ross on 1/19/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISlION
IRVIN MICHAEL SWIM,
Movant,

v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:17-CV-14-JAR

MEMORANDUM AND ORDER
Before the Court is movant' s pro se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. Therein, movant indicates he believes he may be eligible for relief
under the recent Supreme Court case of Johnson v. United States, 135 S. Ct. 2551 (2015).
On August 14, 2015, this Court entered an Administrative Order, styled In Re: Johnson v.
United States. Pursuant thereto, the Court will forward movant's § 2255 motion to the Office of

the Public Defender for the Southeastern District of Missouri, and provide the Public Defender
forty-five (45) days to review the said motion and movant's criminal history in order to
determine whether movant has a potential argwnent _for a sentence reduction under Johnson. In
order to facilitate this process, the Court has issued a separate Administrative Order, authorizing
the Clerk of Court and the United States Probation Office to provide to the Office of the Federal
Public Defender and to the Office of the United States Attorney any records in their possession,
including sealed records from the Court file regarding the movant' s criminal history.
If the Public Defender's Office decides movant has any potential argument under
Johnson, the Public Defender, no later than forty-five (45) days of the date of this Order, should

file either an amended motion to vacate under § 2255 in this case, or a request in the Court of
Appeals for leave to bring a successive§ 2255 motion, as required by 28 U.S.C. § 2244(b)(3).
Accordingly,

IT IS HEREBY ORDERED that the Clerk of Court is directed to forward a copy of
movant's § 2255 motion to the Office of the Public Defender for the Southeastern District of
Missouri.
IT IS FURTHER O:u.IDERED that the Public Defender shall notify this Court, within
forty-five (45) days of the date of this Memorandum and Order, whether it will be pursuing
movant' s arguments under Johnson, either by filing a written notice in this action of their intent
not to represent movant, or by filing an amended motion to vacate, brought pursuant to 28 U.S.C.
§ 2255, also in this action, or a request in the Court of Appeals for leave to bring a successive
§ 2255 motion, as required by 28 U.S.C. § 2244(b)(3).

KT IS FURTHER ORDERED that the Court shall hold this matter in abeyance for fortyfive (45) days.
Dated this D y of January, 2017.

=A.ROSS
TED STATES DISTRICT JUDGE

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