Vallejo v. United States of America

Filing 2

ORDER signed by Judge Rudolph T. Randa on 10/19/2012. United States must file answer to Vallejo's 2255 motion on or before 12/19/2012; Vallejo may file a reply thereto on or before 1/22/2013. (cc: all counsel, via US mail to Timothy Vallejo)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 12-C-1051
(Criminal Case No. 05-Cr-240)

TIMOTHY VALLEJO,
Movant.

DECISION AND ORDER

Pro se movant Timothy Vallejo (“Vallejo”), has filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. He also states that, in “the near future” he
will be filing a memorandum in support of his motion. Relying on the Supreme Court’s June
25, 2012, decision in Miller v. Alabama, 567 U.S.

, 132 S. Ct. 2455 (2012), holding that

the Eighth Amendment prohibits mandatory life sentences for juvenile murderers, Vallejo
asserts that his conviction and sentence must be vacated.
Vallejo’s motion is before the Court for initial review pursuant to Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts. A district
court may dismiss a § 2255 motion without holding a hearing or requiring the government to
respond if “the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” Gallo-Vasquez v. United States, 402 F.3d 793, 797 (7th Cir. 2005)
(quoting 28 U.S.C. § 2255 ¶ 2.) “If it plainly appears from the face of the motion, any annexed

exhibits, and the record of prior proceedings that the moving party is not entitled to relief in
the district court, the judge must dismiss the motion and direct the clerk to notify the moving
party.” Rule 4(b) of the Rules Governing Section 2255 Proceedings. See also, Poe v. United
States, 468 F.3d 473, 477 (7th Cir. 2006).
Section 2255 of Title 28 of the United States Code authorizes a federal prisoner
to ask the court that sentenced him to vacate, set aside, or correct his sentence, if “the sentence
was imposed in violation of the Constitution or laws of the United States, or . . . the court was
without jurisdiction to impose such sentence, or . . . the sentence was in excess of the
maximum authorized by law.”
At this juncture, the Court cannot determine that Vallejo is not entitled to relief
based on his Eighth Amendment claim. Therefore, the Court will require the Plaintiff, United
States of America, to file an answer to Vallejo’s motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence. The answer must conform to the requirements of Rule 5 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
On or before December 19, 2012, the Plaintiff, United States of America MUST
FILE an answer to Vallejo’s motion under 28 U.S.C. § 2255 to vacate, set aside or correct
sentence;

2

The answer MUST conform to the requirements of Rule 5 of the Rules
Governing Section 2255 Proceedings for the United States District Courts; and,
Vallejo may file a reply thereto on or before January 22, 2013.
Vallejo should retain a personal copy of the documents he files in this matter
and those served upon him by the Plaintiff and this Court.
Vallejo must notify the Clerk of Court's office of any change of address. Failure
to do so could result in orders or other information not being timely delivered, thus affecting
his legal rights.
Dated at Milwaukee, Wisconsin this 19th day of October, 2012.
BY THE COURT

Hon. Rudolph T. Randa
U.S. District Judge

3