Creighton v. USA

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion to withdraw as counsel for movant and appointment of substitute counsel filed by Diane Dragan, Assistant Federal Public Defender for the Eastern District of Missouri, pursuant to 28 U.S.C. & #167; 2255 [Doc. 20] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall enter Federal Public Defender Phillip J. Kavanaugh as substitute counsel for movant in this action so that the Office of the Federal Public Defender in the Southern District of Illinois shall receive notice of all filings in this case. IT IS FURTHER ORDERED that the Clerk shall forward a copy of movants § 2255 amended motion to Phillip J. Kavanaugh, Federal Public Defender for the Southern District of Illinois, al ong with a copy of this Memorandum and Order. IT IS FURTHER ORDERED that the Clerk shall notify the United States Probation Office for the Eastern District of Missouri of movants § 2255 amended motion to vacate and that it is brought pursuant to the Supreme Court case of Johnson v. United States,135 S.Ct. 2551 (2015). See Order for further instructions. Signed by District Judge Rodney W. Sippel on 6/24/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAMITRIUS CREIGHTON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:15-CV-1595-RWS

MEMORANDUM AND ORDER
Before the Court is movant’s amended motion to vacate brought by Diane Dragan,
Assistant Federal Public Defender for the Eastern District of Missouri, pursuant to 28 U.S.C. §
2255 [Doc. 19], and motion to withdraw as counsel and request for appointment of substitute
counsel due to a conflict of interest [Doc. 20]. The Court will grant the motion to withdraw and
will appoint Phillip J. Kavanaugh, Federal Public Defender for the Southern District of Illinois,
as substitute counsel for movant.
In the amended motion to vacate, movant seeks relief pursuant to the recent Supreme
Court case of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court
of the United States held the “residual clause” of the Armed Career Criminal Act (“the ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), unconstitutionally vague. Because movant is relying on Johnson as
the basis for his arguments for resentencing, this Court will request assistance from the United
States Probation Office for the Eastern District of Missouri in reviewing movant’s § 2255
amended motion.
Accordingly,

IT IS HEREBY ORDERED that the motion to withdraw as counsel for movant and
appointment of substitute counsel filed by Diane Dragan, Assistant Federal Public Defender for
the Eastern District of Missouri, pursuant to 28 U.S.C. § 2255 [Doc. 20] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall enter Federal Public Defender Phillip
J. Kavanaugh as substitute counsel for movant in this action so that the Office of the Federal
Public Defender in the Southern District of Illinois shall receive notice of all filings in this case.
IT IS FURTHER ORDERED that the Clerk shall forward a copy of movant’s § 2255
amended motion to Phillip J. Kavanaugh, Federal Public Defender for the Southern District of
Illinois, along with a copy of this Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk shall notify the United States Probation
Office for the Eastern District of Missouri of movant’s § 2255 amended motion to vacate and
that it is brought pursuant to the Supreme Court case of Johnson v. United States,135 S.Ct. 2551
(2015).
IT IS FURTHER ORDERED that, within a reasonable time, and in its usual course of
business, the United States Probation Office shall prepare and file in movant’s criminal case a
new Resentence Report relative to movant’s contentions under Johnson, which shall be filed
under seal, with access to the Court and the parties who have entered their appearance in this
matter.
IT IS FURTHER ORDERED that within fourteen (14) days of the filing of the
Probation Office’s Disclosure Copy of the Resentence Report, the parties shall file, in movant’s
criminal case, simultaneous objections to the Resentence Report or statements that they have no
objection. Within seven (7) days of such time, the Office of Probation and Pretrial Services shall
file a final copy of the Resentence Report in movant’s criminal case.

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IT IS FURTHER ORDERED that on the same day that the Final Resentence Report is
filed by the Probation Office in the criminal case, the Government shall file its response to
movant’s amended motion to vacate in this case.
IT IS FURTHER ORDERED that any reply to the Government’s response to the
amended motion to vacate shall be filed, in this case, no later than fourteen (14) days from the
date the response is filed.
Dated this 24th day of June, 2016.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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