United States District Court, E.D. Wisconsin
ORDER CONSTRUING DEFENDANT'S LETTER AS A MOTION
UNDER 28 U.S.C. §2255 (DKT. NO. 61), AND DIRECTING THE
CLERK'S OFFICE TO DOCKET IT AS SUCH
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
October 24, 2016, the court entered the criminal judgment
against the defendant, sentencing him to a term of one
hundred sixty-eight months (168) in custody. Dkt. No. 42.
that time, the court has received a letter from the
defendant, dkt. no. 46; a request for copies of some of the
documents from his case, dkt. no. 56; a letter from the
defendant, dkt. no. 57; another request for copies, dkt. no.
58; a letter from the defendant's mother, dkt. no. 59;
and a motion asking the court to extend the deadline for the
defendant to file a motion under 28 U.S.C. §2255, dkt.
defendant's information, the court shares the following.
As the defendant might imagine, the court has hundreds of
cases, and thousands of documents are filed in those cases.
The way the court finds out that there is something it needs
to act on is that the court's electronic filing system
generates a “motions report.” If a person files a
motion, asking the court to do something, that motion shows
up on the report, and the court adds that motion to the list
of things it needs to rule on. Letters to the court
don't always show up on the motions report. If the
defendant wants the court to take some action, he should file
a document entitled “Motion, ” and then explain
what it is he'd like the court to do. Otherwise, the
clerk's office-folks who, while very experienced,
aren't attorneys-tries to figure whether the letter
writer is asking the court to take some kind of action, and
what that action might be. If the clerk's office
can't figure out whether the defendant is asking for
something, or what he's asking for, then the clerk's
office will docket the item as a letter, and the court may
not see it.
case, the clerk's office read the defendant's most
recent letter, and interpreted it as a motion for an
extension of time. That motion showed up on the motions
report. The court saw it, and then saw some other letters
he'd filed. The court notes this just so that the
defendant is aware of what brought this most recent letter to
the court's attention.
the defendant's two requests for copies: First, there is
a cost for copies. One can find those costs on the court web
site, www.wied.uscourts.gov/district-court-fee-schedule. The
cost for getting a copy of the docket is ten cents ($0.10)
per page. The cost for getting paper copies made from
original documents is fifty cents ($0.50) per page. In the
defendant's first recent request for copies (dkt. no.
56), he asked for a copy of the docket sheet (the court is
not sure how many pages that would be), his plea agreement
(22 pages), his judgment and commitment order (6 pages) and
are no transcripts of the defendant's sentencing hearing.
The court makes audio recordings of all hearings; if someone
wants the audio recording transcribed, that person must
contact the clerk's office and ask for a transcript to be
prepared, or order a CD containing the audio recording.
case, the minutes of the sentencing hearing were (and remain)
sealed, by order of the court. This means that no one can
order the CD, or order a transcript, without the court's
permission. The judgment also is sealed by court order. The
clerk's office cannot provide copies of sealed documents.
If the defendant needs these items, he must request them from
court next turns to the letter it received from the defendant
on April 10, 2017. Dkt. No. 57. In this letter, the defendant
expresses concern with his lawyer's representation of
him, as well as other things. If the defendant is concerned
about his lawyer's actions (or lack of action), the
defendant first should try to communicate with his lawyer. If
that is not successful, the defendant may consider making a
complaint to the Office of Lawyer Regulation (an arm of the
State Bar), or filing a pleading arguing that he received
ineffective assistance of counsel. Those are the proper
procedures for dealing with concerns the defendant might have
about his attorney. Under the circumstances of this case, it
is not appropriate for the court to respond to the other
issues the defendant raised in this letter.
court now turns to the letter it received from the
defendant's mother, dated May 24, 2017 (the court
received it on May 31, 2017). Dkt. No. 59. The court received
and reviewed that letter, in which the defendant's mother
expressed concern that he had been in segregation for an
incident involving one of the guards at his facility, and
that he was at risk as a result. The court's staff
responded to the defendant's mother that if she wanted
the court to take some action, she should file a motion. The
court notes further that if the defendant feels that his
safety is at risk in prison, he should immediately report his
concerns to prison staff-they are on-site, and are in a
position to respond to safety threats.
the court addresses the defendant's most recent letter
asking for an extension to file a motion under 28 U.S.C.
§2255. Dkt. No. 61. The defendant indicates that his
facility has been on lock-down status on and off, and that
his counselor was off work for an extended period because of
Hurricane Harvey (the defendant is housed at USP Beaumont in
2255 requires that a person who wants to file a motion to
vacate, set aside or correct a federal sentence must file
that motion within one year of the date the judgment of
conviction becomes final. 28 U.S.C. §2255(f)(1). This
deadline is what is known as a “statute of
limitations”-it is not a rule, but a law, passed by
Congress. The court, therefore, does not have the authority
to extend that statutory deadline.
the court can do is treat the defendant's letter as a
§2255 motion, and require the clerk's office to
docket it. Once the clerk's office dockets the letter,
the court will send out a briefing schedule, giving the
parties deadlines for filing briefs. If the defendant needs
more time than the court gives him to file a brief, he can
file a motion, asking the court for more time.
court CONSTRUES the defendant's letter
as a motion to vacate, correct or set aside sentence under 28
U.S.C. §2255. Dkt. No. 61. The court
DIRECTS the clerk's office to docket
that letter as a §2255 motion. Once the clerk's