Frank v. USA

Filing 3

MEMORANDUM DECISION - The court thus VACATES its order of April 8, 2010 to the extent that it construed Mr. Franks motions as a § 2255 petition. This civil case is therefore CLOSED and the government need not respond to the petition. Moreover, t he court GRANTS Mr. Franks motion to correct the error in its sentence pursuant to Rule 36. Mr. Frank is not to be committed to the Bureau for incarceration, but rather shall be allowed to serve his four months of work release in local confinement. See Order for details. Signed by Judge Clark Waddoups on 4/15/2011. (jtj)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

DAVID GODWIN FRANK,

ORDER and
MEMORANDUM DECISION

Plaintiff,
Case No. 2:11cv334
v.
Criminal Case No. 2:08-cr-822 CW
UNITED STATES OF AMERICA ,
Judge Clark Waddoups
Defendant.

On April 8, 2011, the court issued an Order in which it construed two motions by David
Godwin Frank to be a petition under 28 U.S.C. § 2255 to correct the court’s judgment to clarify
that Mr. Frank is to be in home confinement and not committed to the United States Bureau of
Prisons. In response to that order, the government has suggested that rather than construe Mr.
Frank’s motions as a § 2255 petition, the court should treat the motions as invoking
Fed.R.Crim.P. 36, which allows the court to correct clerical errors in a judgment. The
government further recommends that it is appropriate in this case that the court correct its
judgment to state that Mr. Frank be allowed to serve his four months of work release in local
confinement.
As noted in its April 8 Order, courts have been warned not to construe motions as § 2255
petitions except when proper warnings are given to prisoners. In this case, Mr. Frank was not
given an opportunity to respond to the court’s intention to construe his motions in that fashion.
Accordingly, the court will follow the government’s suggestion that Mr. Frank’s motions are
more appropriately viewed as requests that this court exercise its power to correct errors pursuant

to Rule 36. The court thus VACATES its order of April 8, 2010 to the extent that it construed
Mr. Frank’s motions as a § 2255 petition. This civil case is therefore CLOSED and the
government need not respond to the petition. Moreover, the court GRANTS Mr. Frank’s motion
to correct the error in its sentence pursuant to Rule 36. A second amended judgment will today
be placed on the docket of Mr. Frank’s criminal case that clarifies that Mr. Frank is not to be
committed to the Bureau for incarceration, but rather shall be allowed to serve his four months of
work release in local confinement.
DATED this 15th day of April, 2011.
BY THE COURT:

___________________________
Clark Waddoups
United States District Judge

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