Zell v. USA

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court is directed to forward a copy of movants § 2255 motion to the Office of the Public Defender for the Eastern District of Missouri. IT IS FURTHER ORDERED that the Public Defende r shall notify this Court, within forty-five (45) days of the date of this Memorandum and Order, whether it will be pursuing movants 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). IT IS FURTHER ORDERED that movants motion for leave to file a supporting memorandum [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that movants motion for leave to proceed in forma pauperis [Doc. 3] is DENIED as moot, because there is no fee for filing a fe deral habeas corpus action. IT IS FURTHER ORDERED that movants motion for transcripts [Doc. 4] is DENIED, without prejudice, pending the Federal Defenders review of this case. IT IS FURTHER ORDERED that the Court shall hold this matter in abeyance for forty-five (45) days. (copy of motion sent to FPD) Signed by District Judge John A. Ross on 2/24/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS ZELL,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:16-CV-196-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, which indicates that movant 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 to the Administrative Order, the Court will forward movant’s § 2255
motion to the Office of the Public Defender for the Eastern 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 argument 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 a 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 Eastern 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 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).
IT IS FURTHER ORDERED that movant’s motion for leave to file a supporting
memorandum [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that movant’s motion for leave to proceed in forma
pauperis [Doc. 3] is DENIED as moot, because there is no fee for filing a federal habeas corpus
action.
IT IS FURTHER ORDERED that movant’s motion for transcripts [Doc. 4] is
DENIED, without prejudice, pending the Federal Defender’s review of this case.
IT IS FURTHER ORDERED that the Court shall hold this matter in abeyance for fortyfive (45) days.
Dated this 24th day of February, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
2