Reese v. United States of America

Filing 4

ORDER VACATING 2 Order to Show Cause, RE: 3 Letter filed by United States of America AND DENYING, without prejudice, petitioner's request for an extension to file petition - For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORD ER, petitioner's request for an extension of time to file his petition for a a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255") is DENIED, without prejudice to renew upon the filing of the petition. The court p reviously advised petitioner that, if he decided to file a motion pursuant to Section 2255, he should include in his petition any arguments as to why the statute of limitations should be equitably tolled. See, Docket 06-CR-413, Entry No. 637. In res ponse to the court's Summary Order, petitioner filed essentially the same request for an extension of time, this time in the instant new civil action. See, Entry No. 1 this docket. Once again petitioner is advised that the court cannot address h is extension request until he actually files a petition that states the reasons why his sentence should be vacated, set aside or corrected and includes in his petition any arguments as to why the statute of limitations should be equitably tolled. Un til Petitioner files such a Petition or at least states his reasons in a manner that permits the court to construe his submission as a petition pursuant to Section 2255, the court cannot address Petitioner's request for an extension of time to f ile his petition. The court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this Summary Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. Unit ed States, 369 U.S. 438, 44445 (1962). In light of the forgoing, the Order to Show Cause issued on November 15, 2011 is vacated and the government's request for an extension is denied as moot. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Summary Order to pro se petitioner and to close this case. SO ORDERED. Ordered by Judge Dora Lizette Irizarry on 11/30/2011. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DASHAWN REESE, pro se,
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Petitioner,
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-against:
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UNITED STATES OF AMERICA,
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Respondent.
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SUMMARY ORDER
11-CV-5432 (DLI)

DORA L. IRIZARRY, United States District Judge:
On August 17, 2011, pro se 1 Petitioner Dashawn Reese filed a motion for an extension of
time to file a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (“Section 2255”), challenging
his March 20, 2008 sentence. (Docket 06-CR-413, Entry No. 635.) By Summary Order dated
September 15, 2011, the court denied Petitioner’s request because Petitioner had not yet filed an
actual petition pursuant to Section 2255 and, until Petitioner files an actual petition, the court
does not have jurisdiction to render a decision on Petitioner’s motion for an extension of time to
file his petition. (See Docket 06-CR-413, Entry No. 637); Green v. U.S., 260 F. 3d 78, 82-83 (2d
Cir. 2001) ("a district court may grant an extension of time to file a motion pursuant to [S]ection
2255 only if . . . the moving party requests the extension upon or after filing an actual [S]ection
2255 motion . . . ."); United States v. Leon, 203 F. 3d 162, 164 (2d Cir. 2000) (per curiam) ("[A]
federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until a petition is
actually filed . . . .") The court also advised Petitioner that if he decided to file a motion pursuant
to Section 2255, he should include in his petition any arguments as to why the statute of
1

The court is mindful that pro se submissions, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). Thus, the court interprets the motion “to raise the strongest arguments that [it]
suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis
omitted).

limitations should be equitably tolled. (Docket 06-CR-413, Entry No. 637.) In response to the
court's Summary Order, Petitioner filed essentially the same request for an extension of time,
albeit as a new civil action. (See Docket No. 11-CV-5432, Entry No. 1.)
The court reiterates that it is not permitted to address Petitioner's request for an extension
of time to file his Section 2255 motion until he files a petition that states the reasons for his
belief that his sentence should be vacated, set aside or corrected. Although the court has a duty
to liberally construe pro se pleadings, as the court stated in its September 15, 2011 Summary
Order, Petitioner's request for an extension of time fails to set forth any basis in fact or law for
relief under Section 2255. (See Docket No. 06-CR-413, Entry No. 637.) Until Petitioner files
such a Petition or at least states his reasons in a manner that permits the court to construe his
submission as a petition pursuant to Section 2255, the court cannot address Petitioner's request
for an extension of time to file his petition. The court certifies pursuant to 28 U.S.C. §1915(a)(3)
that any appeal from this Summary Order would not be taken in good faith and therefore in
forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
November 30, 2011
/s/
DORA L. IRIZARRY
United States District Judge

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