Atherton v. USA

Filing 2

ORDER that petitioner is to file amended 2255 motion on approved form by 7/31/13 or case to be dismissed without prejudice. Signed by District Judge William M. Conley on 7/1/13. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEBORAH ATHERTON,
Petitioner,

ORDER
13-cv-454-wmc

v.
UNITED STATES OF AMERICA,
Respondent.

Petitioner Deborah Atherton has filed a pleading, which seeks relief from her conviction
and sentence in United States v. Atherton, Case No. 12-cr-45 (W.D. Wis.). Atherton pled guilty
to one count of conspiring to make false statements to a credit union in violation of 18 U.S.C.
§ 371. On October 10, 2012, the court sentenced her to serve 50 months in prison, followed
by a two-year term of supervised release. She was also ordered to make restitution in the
amount of $518,321.76. Her appeal was dismissed on January 2, 2013. See United States v.
Atherton, No. 12-3436 (7th Cir.).
Atherton now argues that she is entitled to relief from her conviction and sentence
because: (1) she was denied effective assistance of counsel; (2) the charges against her were false;
and (3) the amount of restitution imposed was disproportionately great in comparison to the
$162,854.00 that co-defendant Timothy Whiteagle was ordered to pay following his conviction
on related charges. See United States v. Whiteagle, Case No. 11-cr-65-wmc (W.D. Wis. Oct. 25,
2012). While Atherton makes other allegations that are not supported by sufficient facts and
do not clearly articulate a constitutional violation or defect, Atherton’s present request for relief
read liberally may be construed as a motion vacate, set aside or correct sentence under 28 U.S.C.
§ 2255.

The handwritten pleadings submitted by Atherton do not, however, follow the form
approved in the Rules Governing Section 2255 Proceedings for the United States District
Courts. At a minimum, Rule 2 requires a movant to specify all the grounds for relief available
and provide facts supporting each ground. More importantly, Atherton is advised that there are
statutory restrictions on filing second or successive requests for relief under 28 U.S.C. § 2255.
Thus, the United States Supreme Court has counseled courts to warn litigants before
characterizing pro se pleadings as a first § 2255 motion. See Castro v. United States, 540 U.S.
375, 383 (2003).
So that Atherton may have an opportunity to decide whether she wishes to pursue relief
under 28 U.S.C. § 2255, the court will give her until July 31, 2013, to either withdraw her
pending motion or submit an amended version that complies with the Rules Governing Section
2255 Proceedings. Assuming that she wishes to proceed, the court will direct the clerk’s office
to provide her with a form (“Motion to Vacate, Set Aside, or Correct a Sentence”) that has been
approved for use by a person in federal custody.

ORDER
IT IS ORDERED that:
1.

On or before July 31, 2013, petitioner Deborah Atherton shall advise the court
in writing whether she wishes to pursue relief under 28 U.S.C. § 2255 by filing
an amended motion using a form approved for use by prisoners seeking relief
under 28 U.S.C. § 2255. The clerk’s office will provide Atherton with an
approved form or she may use any similar form available at the prison law library.

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2.

If Atherton fails to respond or comply as directed by July 31, 2013, the court will
assume that she wishes to withdraw this action voluntarily. In that event, her
case will be dismissed without prejudice under Fed. R. Civ. P. 41(a) without
further notice.

Entered this 1st day of July, 2013.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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