Lopez v. United States of America

Filing 17

ORDER signed by Chief Judge Pamela Pepper on 3/23/2021 GRANTING 16 petitioner's motion to withdraw petition. Petition Under All Writs Act (dkt. no. 1 in this case, dkt. no. 532 in 99-cr-209) deemed WITHDRAWN. If petitioner files petition under 28 USC §2255, withdrawn petition will not constitute a §2255 petition for purposes of considering whether future petition is second or successive. (cc: all counsel and mailed to Arthur Lopez at USP Leavenworth)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ARTHUR LOPEZ,
Petitioner,
Case No. 17-cv-1088-pp
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER GRANTING PETITIONER’S MOTION TO WITHDRAW PETITION
(DKT. NO. 16) AND DEEMING PETITION WITHDRAWN
______________________________________________________________________________
On August 8, 2017, the court opened this case with a document it had
received from the petitioner titled “Petition Under the All Writs Act (Audita
Querela) 18 U.S.C. § 1651, Pursuant to the U.S. Supreme Court’s Decision in
United States v. Morgan, 346 U.S. 502 (1954).” Dkt. No. 1. The same day, the
court entered an order dismissing the case as untimely, finding that the
petitioner had used “inventive captioning” to avoid the statute of limitations.
Dkt. No. 2. The petitioner appealed. Dkt. No. 4.
While the appeal was pending, the petitioner filed a motion for
clarification. Dkt. No. 13. Citing Castro v. United States, 540 U.S. 375, 377
(2003), the petitioner pointed out that the court had recharacterized his
petition as a motion to vacate, set aside or correct sentence under 28 U.S.C.
§2255 without giving him the opportunity to withdraw it (and avoid later losing
his opportunity to file such a motion due to the prohibitions against second or
successive petitions). Dkt. No. 13.
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Finding that the petitioner was correct, and that the court had
erroneously recharacterized his petition without giving him a chance to
withdraw it, the court granted the petitioner’s motion to correct and gave him
the opportunity to withdraw the petition to avoid having the court
recharacterize the petition. Dkt. No. 15. The petitioner now has timely filed a
motion to withdraw the petition. Dkt. No. 16.
The court GRANTS the petitioner’s motion to withdraw the petition. Dkt.
No. 16.
The court ORDERS that the Petition Under the All Writs Act (Audita
Querela) 18 U.S.C. § 1651, Pursuant to the U.S. Supreme Court’s Decision in
United States v. Morgan, 346 U.S. 502 (1954), originally filed in Case No. 99cr-209, dated by the plaintiff on May 13, 2017 and utilized to open the current
case, is deemed WITHDRAWN.
The court ORDERS that if the petitioner files a petition under 28 U.S.C.
§2255, the above-described petition will not constitute a petition under 28
U.S.C. §2255 for the purposes of considering whether the future petition is
second or successive.
Dated in Milwaukee, Wisconsin this 23rd day of March, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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