Filed: Nov. 24, 2015
Latest Update: Nov. 24, 2015
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . This matter comes before the Court on Defendant's Keon D. Pendleton's Pro Se Motion (Doc. 691) for Counsel. The Court believes, however, that Defendant intends to invoke 28 U.S.C. 2255 because the relief he seeks is only available through such a motion. The Court is hesitant to construe this as a 2255 motion without a clear indication that Pendleton intends to invoke that statute. "[T]he court cannot so recharacterize a pro se
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . This matter comes before the Court on Defendant's Keon D. Pendleton's Pro Se Motion (Doc. 691) for Counsel. The Court believes, however, that Defendant intends to invoke 28 U.S.C. 2255 because the relief he seeks is only available through such a motion. The Court is hesitant to construe this as a 2255 motion without a clear indication that Pendleton intends to invoke that statute. "[T]he court cannot so recharacterize a pro se l..
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MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on Defendant's Keon D. Pendleton's Pro Se Motion (Doc. 691) for Counsel. The Court believes, however, that Defendant intends to invoke 28 U.S.C. § 2255 because the relief he seeks is only available through such a motion.
The Court is hesitant to construe this as a § 2255 motion without a clear indication that Pendleton intends to invoke that statute. "[T]he court cannot so recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's `second or successive' restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing." Castro v. United States, 540 U.S. 375, 377 (2003).
Therefore, the Court WARNS Defendant Pendleton that if he does not file a motion to withdraw his pending motion (Doc. 691) on or before December 21, 2015, the Court will construe it as a § 2255 motion and Pendleton will then be subject to the second or successive filing requirements contained in 28 U.S.C. § 2255, ¶ 8.
Defendant is NOTIFIED that if he does not withdraw his motion and proceeds with a § 2255 motion, that Administrative Order 176 provides that the Federal Public Defender's Office for the Southern District of Illinois (FPD) shall be appointed to handle his motion to vacate or correct sentence based on <i>Johnson v. United States</i>, ___ U.S. ___, 135 S.Ct. 2551 (2015) (holding that an increased sentence under the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) violates the right to due process). Further, the Federal Public Defender's Office will be given an opportunity to file an amended § 2255 motion on defendant's behalf and to address Defendant's Motion to Reduce Sentence (Doc. 671).
It is also noted that the Defendant has a previous pro se Motion (Doc. 682) to Appoint Counsel which, based on the above, is DENIED as moot.
IT IS SO ORDERED.
