Schwenke v. USA

Filing 4

ORDER directing the United States Attorney within forty (40) days of the date of this Order to file an answer and/or other appropriate response to Petitioners allegations. Signed by District Judge Frank D. Whitney on 8/16/2010. (cw)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:10CV376-W-02 (3:07CR79-1-W)

PATRICK SCHWENKE,

) ) Petitioner, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ______________________________)

ORDER

THIS MATTER comes before the Court on Petitioner's de facto § 2255 motion to vacate Petitioner's conviction for a violation of 18 U.S.C. § 924(c)(1), filed August 12, 2010 (Doc. No. 1). By his motion, Petitioner, through his counsel, alleges that trial counsel's ineffectiveness caused him to make and unintelligent and involuntary guilty plea to the subject firearm charge, there was no factual basis to support his plea to that charge, and Petitioner is actually innocent of the subject charge. Although it is far from clear whether Petitioner is entitled to any relief on his claims, after careful consideration of these matters, the Court finds that the Government should be required to file a detailed, well-reasoned response to Petitioner's each of the claims.

NOW, THEREFORE, IT IS ORDERED THAT: 1. Within forty (40) days of the date of this Order, the

United States Attorney shall file an answer and/or other appropriate response to Petitioner's allegations; and 2. The Clerk shall send copies of this Order to counsel for

the parties. SO ORDERED. "Motion August 16, 2010 File Amended Signed: For Leave To