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U.S. v. RODRIGUEZ

United States District Court, N.D. Illinois, Eastern Division


October 18, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY RODRIGUEZ, etc., Defendant.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM

Billy Rodriguez a/k/a Billy Valentin ("Valentin")*fn1 has filed a pro se notice of appeal from the Opinion, which summarily dismissed Valentin's years-late motion to set aside and vacate the 292-month custodial sentence that this Court had imposed on him more than a decade ago. In material part, although the notice of appeal also includes a number of other scattershot assertions, Valentin complains of what he characterizes as this Court's arbitrary construction of his motion as having been brought under 28 U.S.C. § 2255 ("Section 2255").

This Court is of course well aware that it is inappropriate to recharacterize as a Section 2255 motion a post-conviction effort to gain relief by someone in federal custody. But in this instance Valentin had simply labeled his motion as "Defendants Pro Se Motion To Set Aside and Vacate Sentence," without attaching any label to it other than "motion," and the only conceivable source of such relief so long after the fact would have been under Section 2255 (by contrast, jurisdiction to correct or reduce a sentence under Fed.R. Crim. P. 35(a) exists for only the shortest of time spans — seven days — and for limited grounds). Moreover, Valentin had tendered no fee and had captioned his filing under the original criminal Case No. 92 CR 307-4 — treatment also consistent only with a Section 2255 motion.

  Accordingly the Opinion did indeed treat Valentin's submission as a Section 2255 motion, with no intention of engaging in an impermissible recharacterization. It may be added, albeit parenthetically, that the potential harm from any recharacterization (the possibility that a later effort by Valentin might be treated as a second motion, one requiring appellate certification under the final paragraph of Section 2255) is entirely absent here, because any Section 2255 motion on his part must be doomed not only as untimely but also for the added ground specified in the Opinion.


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