Filed: Aug. 21, 2013
Latest Update: Aug. 21, 2013
Summary: MEMORANDUM & ORDER WILLIAM D. STIEHL, District Judge. This matter is before the Court on defendant's pro se motion for Rule 35 Evaluation (Doc. 89). The defendant seeks to have the Court order the government to file a Rule 35 motion for reduction in sentence based on his cooperation. Rule 35(b) provides a "mechanism for the government to seek a reduction in a defendant's sentence based on his substantial cooperation; it nowhere allows a defendant to force the government to seek a Rule 35(b)
Summary: MEMORANDUM & ORDER WILLIAM D. STIEHL, District Judge. This matter is before the Court on defendant's pro se motion for Rule 35 Evaluation (Doc. 89). The defendant seeks to have the Court order the government to file a Rule 35 motion for reduction in sentence based on his cooperation. Rule 35(b) provides a "mechanism for the government to seek a reduction in a defendant's sentence based on his substantial cooperation; it nowhere allows a defendant to force the government to seek a Rule 35(b) r..
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MEMORANDUM & ORDER
WILLIAM D. STIEHL, District Judge.
This matter is before the Court on defendant's pro se motion for Rule 35 Evaluation (Doc. 89). The defendant seeks to have the Court order the government to file a Rule 35 motion for reduction in sentence based on his cooperation.
Rule 35(b) provides a "mechanism for the government to seek a reduction in a defendant's sentence based on his substantial cooperation; it nowhere allows a defendant to force the government to seek a Rule 35(b) reduction on his behalf." United States v. Obeid, 707 F.3d 898, 901 (7th Cir. 2013). However, "if the government refuses to follow through on a promise to file a Rule 35(b) motion, and that refusal is `based on an unconstitutional motive' or is `not rationally related to any legitimate Government end,' Wade v. United States, 504 U.S. 181, 185-86 (1992), the defendant is not without opportunity for redress." The defendant may challenge the government's refusal in a motion under 28 U.S.C. § 2255. See, United States v. Richardson, 558 F.3d 680, 681-82 (7th Cir.2009).
In this case, the defendant has already had one §2255 motion filed and denied by this Court. Griffith v. United States, No. 09-924-WDS. The Seventh Circuit further denied his request for a certificate of appealability and to proceed in forma pauperis. Griffith v. United States, No. 10-2743 (7th Cir. Oct. 6, 2011).
In light of the fact that this request for a Rule 35 motion by the government must be considered as a motion under §2255, and, because the defendant has already had one §2255 petition, he must seek leave to file a second or successive petition from the Court of Appeals. The defendant must:
clear the jurisdictional hurdle imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). That statute provides that a district court may not entertain a "second or successive" motion filed by a federal prisoner unless the prisoner has first obtained authorization to file from the court of appeals. §§ 2244(a); 2255(h). ...
Obeid, 707 F.3d at 901. Accordingly, the Court is without jurisdiction to consider defendant's motion in this criminal action and it is DISMISSED.
IT IS SO ORDERED.
