Jones v. United States of America

Filing 8

ORDER denying 4 Motion to Quash and for service. Signed by US Magistrate Judge John E. Simko on 2/12/13. (DJP)

FILED
FEB 1 2 2013
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

~4.m

WESTERN DIVISION

*********** ****************************************
*
RON JONES,
CIY. 13-5008
*
*
Movant,
*
*
vs.
ORDERRE:
*
MOTION TO QUASH (Doc. 4)
*
UNITED STATES OF AMERICA,
AND FOR SERVICE
*
*
Respondent.
*
*
************ ***************************************
The Movant, Ron Jones, ("Jones") is a federal prisoner incarcerated at the Florence Federal
Prison Camp in Florence, Colorado. He has filed apro se Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.c. § 2255 (Doc. 1), along with a Memorandum in Support (Doc. 2) and
a Supplement (Doc. 3). Although service of the Motion has not yet been ordered upon the
Government, the Government moved to Quash (Doc. 4).

Jones has filed a Reply (Doc. 6) to the

Government's Motion to Quash.

BACKGROUND
In February, 2010, a grand jury indicted Jones along with two co-defendants in the District
of South Dakota, Western Division on multiple counts including Conspiracy, Wire Fraud, Mail
Fraud, Money Laundering, Tax Evasion and Aiding and Abetting. See United States v. Ron Jones

a/Ida Ronald Joseph Jones, Arland Clark, and Mary Clark, CR 10-50015, United States District
Court, District of South Dakota, Western Div.' At the heart ofthe Indictment was lones's purported
business, Plato Systems, GMBH, Inc. which Jones claimed was a computer software venture. The
grand jury issued a superseding indictment on October 19, 2010, in which Jones and his two co­

'References to docket numbers in the criminal case will be by "CR Doc." followed by the
docket number.

defendants were charged with multiple counts ofConspiracy, Wire Fraud, Money Laundering, False
Statements, Tax Evasion, and Aiding and Abetting.2

On October 3, 2011, Jones filed a plea

agreement and a factual basis statement in which he agreed to plead guilty to three Counts of the
Superseding Indictment: Counts 1 (Conspiracy in violation of 18 U.S.C. § 371), Count 12 (Wire
Fraud and Aiding and Abetting in violation of 18 U.S.c. §1343 and 2) and Count 71 (Money
Laundering in violation of 18 U.S.C. § 1957(a)). CR Doc. 295, 296. In return, the Government
agreed to dismiss the remaining Counts in the Superseding Indictment.

Id. A change of plea

hearing was held before Judge Viken on October 3, 2011. CR Doc. 336. Judge Viken thoroughly
questioned Jones before accepting Jones's guilty plea.

Among other things, Jones acknowledged

that:
1.

He was under oath and could be charged with perjury ifhe provided false information
during the plea hearing; id p. 3

2.

He was fully satisfied with the legal advice and representation he'd received from his
lawyer; id. pA

3.

Nobody threatened or pressured him to sign the plea agreement; id. p. 13

4.

He signed the plea agreement as his own free and voluntary act and that it was
acceptable to him; id. p. 14

5.

He fully understood the elements to all the charges to which he agreeing to plead
guilty; id. p. 24.

6.

Every detail in the factual basis statement (CR Doc. 276) signed by him was
accurate; id. p. 25-26.

7.

He was pleading guilty of his own free will and because he was in fact guilty; id. p.
26.

At the conclusion ofthe very thorough plea colloquy, Judge Viken accepted Jones's guilty
plea. CRDoc. 336 at 29. Jones's sentencing hearing was scheduled for January 30,2012. CRDoc.
299. On January 25,2012, however, Jones moved to withdraw his guilty plea. CR Doc. 333. A

2Jones was charged in Counts 1-49, and 60-84 of the Superseding Indictment. CR Doc.
103.
2

hearing was held before Judge Viken on January 27,2012. During the hearing, Jones changed his
mind and orally withdrew the Motion to Withdraw Guilty Plea. See Judge Viken's Order dated
January 31,2012, CR Doc. 349. Judge Viken's Order explains that during the hearing on Jones's
Motion to Withdraw Guilty Plea, Judge Viken
engaged Mr. Jones in a comprehensive dialogue about his decision to withdraw the
motion to withdraw his guilty pleas. Mr. Jones assured the court the guilty pleas
were knowing and voluntary pleas supported by an independent basis in fact as to
each ofthe essential elements ofeach offense. Mr. Jones acknowledged he is, in fact,
guilty of all three counts of conviction. Mr. Jones acknowledged the filing of the
motion to withdraw his guilty pleas was done in haste, without a basis in fact and he
did not have a valid claim of actual innocence to the three counts of conviction
asserted in his affidavit. (Docket333-l). Mr. Jones' attorney, Ellery Grey, supported
the oral motion to withdraw guilty pleas and defendant's decision to proceed to
sentencing.

See CR Doc. 349. Jones's sentencing hearing was held on January 30,2012 and his Judgment of
Conviction was entered on January 31,2012. CR Doc. 350. Jones was sentenced to 96 months
imprisonment. Jones did not file a direct appeal.

Jones filed this Motion to Vacate, Set Aside or Correct Sentence on January 31,2013. He
again asserts actual innocence. Jones asserts his counsel was ineffective, that the prosecutor engaged
in misconduct, and that his sentence is excessive. In addition to the Motion which Jones filed on the
form provided to prisoners for the specific purpose of stating § 2255 claims, Jones has filed a
supporting Memorandum which is 104 pages long, and a Supplement containing fifty six exhibits
(415 pages).

JURISDICTION
This matter is pending before the District Court pursuant to 28 U.S.C. § 2255. It was
assigned to The Honorable Jeffrey Viken and referred to the undersigned pursuant to 28 U.S.C. §
636(b)(I)(B) and Judge Schreier's Standing Order dated March 28,2010.

3

DISCUSSION

The Government moves to Quash Jones's Motion to Vacate, Set Aside or Correct Sentence
"on the grounds the petition far exceeds the allowable page limit." The Government refers to Local
Rule 7.1(B)(I). In his Response (Doc. 6) Jones asserts Local Rule 7.1(B)(I) does not apply but
Local Rule 83.10 applies instead.

Local Rule 7.1 (B)(l) provides:
LR 7.1 Motions
B. Required Written Brief. With every motion raising a question oflaw, except oral
motions made during a hearing or trial or motions to amend a scheduling order or
motions to withdraw pursuant to D.S.D. LR 57.4, unless otherwise ordered, the
movant shall serve on opposing counsel and file with the clerk of court a brief
containing the specific points oflaw with the authorities in support thereof on which
the movant relies, including the Federal Rule of Civil Procedure on the basis of
which the motion is made. On or before 21 calendar days after service of a motion
and brief, unless otherwise specifically ordered by the court, all opposing parties shall
serve and file with the clerk of court a responsive brief containing the specific points
of law with authorities in support thereof in opposition to the motion. The movant
may file with the clerk of court a reply brief within 14 days after service of the
responsive brief.

1. Page Limitation on Briefs.
Briefs and any attachments other than documentary evidence attached
in accordance with D.S.D. LR 56. 1(A) shall not exceed 25 pages or
12,000 words unless prior approval has been obtained from the court.
Ifa briefexceeds 25 pages, it shall be accompanied by a certificate by
the attorney, or an unrepresented party, that the brief complies wit the
type volume limitation. The person preparing the certificate may rely
on the word count of the word-processing system used to prepare the
brief.
2. Attachments. A party must submit as exhibits or attachments
only those excerpts of the referenced document that are directly
germane to the matter under consideration by the court. Excerpted
material must be clearly and prominently identified as such.
Highlighting or underlining relevant portions is encouraged. Parties
who file excerpts of documents as exhibits or attachments under this
rule do so without prejudice to their right to timely file additional
excerpts. Responding parties may file additional excerpts that they
believe are directly germane. The court may require parties to file
additional excerpts or the complete document.
4

Local Rule 83.10 provides in relevant part:
LR 83.10 Writs of Habeas Corpus and Motions Pursuant to 28 U.S.C. § 2255

A. Filing Requirements. Petitions for writs ofhabeas corpus pursuant to 28 U.S.c.
§ 2254 and 28 U.S.C. § 2241, motions to vacate sentence pursuant to 28 U.S.C.
§2255, and applications to proceed in forma pauperis shall be signed and legibly
written or typewritten on forms prescribed by the court in accordance with the
instructions provided with the forms unless the court finds, in its discretion, that the
petition, motion, or application is understandable and that it conforms with federal
and local requirements for such actions. Copies of the relevant forms and
instructions shall be provided by the clerk of court upon request. The court may
strike or dismiss petitions, motions, or applications that do not conform substantively
or procedurally with federal and local requirements for such actions.
Jones filed his Motion to Vacate on the form provided, as required by LR 83.10. His
supporting Memorandum, however, far exceeds the page limit which is imposed on every brieffiled
in support of a motion pursuant to LR 7.1 (B)(l). That his Memorandum (Doc. 2) exceeds the
allowed page limit, however, does not necessitate the quashing of Jones's Motion (Doc. 1).

THEREFORE; it is ORDERED:
(1)

The Government's Motion to Quash is DENIED; however

(2)

Jones's over length brief (Doc. 2) will not be considered by the Court. Jones shall
re-submit a Memorandum which complies with L.R. 7.1(B)(1) on or before Tuesday,
March 5,2013.

(3)

Upon receipt ofJones's Memorandum as described in Paragraph (2) above, the Clerk
of Court will deliver or serve a copy of the motion and memorandum on the United
States Attorney for the District of South Dakota.

(4)

The United States Attorney for the District of South Dakota will serve and file an
answer or responsive pleading to the motion 45 days thereafter.

Dated this ~ day of February, 2013.

BY THE COURT:

(

John E.

United

5