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BARDNEY v. UNITED STATES

October 11, 1996

VICTOR M. BARDNEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 The court ordered Attorney R. Eugene Pincham ("Pincham") to file by September 13, 1996, a written response detailing why the court should not impose Rule 11 sanctions for various misrepresentations and frivolous arguments found within the above-entitled Petition. He did not comply with the order and has yet to file a response. For the following reasons, the court orders Pincham to pay to the clerk of this court a $ 1,000 fine pursuant to its authority under Federal Rule of Civil Procedure 11.

 I.

 On August 14, 1996, Pincham filed for Victor Mr. Bardney ("Petitioner") a "Petition For Discharge/Or Sentence Reduction" ("Petition"). Pincham signed the final page of the Petition.

 On August 29, 1996, the court issued a minute order with the following text:

 
The signer of the petition, Attorney Pincham, shall respond in writing on or before September 13, 1996, to show cause why sanctions should not be imposed against him for violations of Federal Rule of Civil Procedure 11(b)(1)&(2), in that he:
 
(a) has failed in the petition to disclose, mention or cite the decision of the Seventh Circuit Court of Appeals affirming the judgment of conviction issued by the trial court;
 
(b) has failed to disclose, mention, or cite to the denial of rehearing by the Seventh Circuit Court of Appeals, and the denial of certiorari by the United States Supreme Court;
 
(c) has raised frivolous issues in bringing the petition pursuant to 28 U.S.C. § 2255, by raising issues identical to those raised on direct appeal and rejected by the Seventh Circuit Court of Appeals (with the exception of the Bailey issue);
 
(d) has failed to research and/or cite to applicable cases decided by courts within the Seventh Judicial Circuit regarding the Bailey decision.

 As of the date of this Order, Pincham has neither filed his court-ordered response nor communicated to the court a reason for his failure to file such a response. The court gave Pincham ample opportunity to respond and to make his arguments known on public record. He has not done so.

 III.

 A. Opportunity to Respond

 The court is well aware that prior to the imposition of sanctions, it must issue an order giving notice to the alleged violator of possible sanctions, and giving that individual an opportunity to respond. Johnson v. Waddell & Reed, Inc., 74 F.3d 147, 151 (7th Cir. 1996); See also Fed. R. Civ. P. 11(c)(2)(B) (monetary sanctions "may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned"). The court is also mindful that the plain language or the Rule requires an "order from the court must describe the specific conduct which appears to violate Rule 11 and direct the party or counsel to show cause why it has not violated the rule" to ensure due process. Id. ; Fed. R. Civ. P. 11(c)(1)(B).

 As directed by the rule; the court entered an order describing the specific conduct that appears to violate subsections of Rule 11, and directed Pincham to show cause why the court should not impose sanctions. Pincham neglected to respond. This, in itself, is improper; an order issued pursuant to Rule 11 "is not a gnat to be brushed off with the back of the hand." Szabo Food, 823 F.2d 1073, 1084.

 However, Pincham's neglect is to his detriment. Pincham ignored the opportunity to respond to the court's suspicion of the propriety of the arguments within the Petition. Pincham's indifference to the court's order leaves the court without argument as to why sanctions should not ...


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