Eckles v. USA

Filing 5

ORDER granting in part and denying in part 4 Motion to Hold 2255 Petition In Abeyance Until Petitioner Submits Memorandum Of Law In Support. Petitioner shall have up to and including 1/3/2012 to file supporting memorandum. Signed by District Judge Richard Voorhees on 11/17/2011. (Pro se litigant served by US Mail.) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:11cv68-V-2
(5:05cr9-V-3)

SHONIKA GAIL ECKLES,

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

ORDER

THIS MATTER comes before the Court on Petitioner’S Motion to Hold 2255 Petition
in Abeyance Until Petitioner Submits Memorandum of Law in Support of Petition, filed
September 6, 2011 (Doc. No. 4).
On March 13, 2006, a jury convicted Petitioner of conspiracy to possess with intent to
distribute quantities of cocaine, cocaine base, and marijuana in violation of 21 U.S.C. §§
841(a)(1) and 846, and two counts of possession with intent to distribute quantities of crack
cocaine and cocaine powder, in violation of 21 U.S.C. § 841(a)(1). (Criminal Case No. 5:05cr9,
Doc. No. 509). On March 2, 2007, the Court entered a Judgment sentencing Petitioner to a total
of 262 months imprisonment. (Id., Doc. No. 703). However, after successfully challenging her
sentence on appeal before the Fourth Circuit Court of Appeals, on November 9, 2009, this Court
re-sentenced Petitioner to a total of 188 months imprisonment. (Id., Doc. No. 1272). Petitioner
did not appeal her new sentence.
Rather, in August 2010, Petitioner began filing various post-judgment motions seeking,
among other matters, to extend the time for filing her § 2255 Motion. (Id., Doc. Nos. 1349, 1361,

1365 and 1369) On May 10, 2011, the Court entered an Order finding that Petitioner’s pleadings
had been filed well before the expiration of her 2010 deadline for filing a § 2255 Motion. (Id.,
Doc. No. 1374 at 3). Accordingly, the Court’s Order directed the Clerk to construe Petitioner’s
post-judgment motions as a timely filed § 2255 Motion and to open a new civil case for such
Motion to Vacate, and it gave Petitioner nearly two months to supplement such Motion by
submitting a pleading in which she articulated the specific legal bases for relief. (Id. at 4).
On July 1, 2011, Petitioner timely filed a form Motion to Vacate setting forth a 26pronged claim of ineffective assistance of counsel along with claims alleging that her due
process rights were violated and that she was subjected to prosecutorial misconduct. (Doc. No.
3). However, Petitioner’s Motion does not include any factual allegations to support her claims.
Thus, by the instant Motion (Doc. No. 4), Petitioner essentially seeks a 120-day extension of
time in which to obtain various documentary and draft a memorandum in support of her Motion
to Vacate. Upon consideration of Petitioner’s Motion, for good cause shown, the Court finds
that the Motion should be granted. However, because more than two months have elapsed since
the time that Petitioner filed this Motion, the Court will only grant her an additional forty-five
days from the date of this Order in which to file her supporting memorandum.
NOW, THEREFORE, IT IS ORDERED that:
1. Petitioner’s de facto Motion for extension of time to file a memorandum in support of
her Motion to Vacate (Doc. No. 4) is GRANTED in part and DENIED in part;
2. Petitioner shall have up to and including January 3, 2012 in which to file her
supporting memorandum; and
3. Failure to timely file the subject memorandum could result in the dismissal of
Petitioner’s claims as conclusory and factually baseless.
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SO ORDERED.
Signed: November 17, 2011

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