United States District Court, S.D. Illinois
May 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
KEVIN LEE ANDERSON, Defendant.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on Anderson's pro se motion
to modify his prison sentence, which he based on the recent
United States Supreme Court decision of Blakely v. Washington,
124 S. Ct. 2531 (2004). The Court notes that such relief is only
available by motion made under 28 U.S.C. § 2255; so Anderson's
motion is essentially a mislabeled § 2255. And per Castro v.
United States, 124 S. Ct. 786 (2003), courts aren't permitted to
construe mislabeled § 2255s as § 2255s without affording the
defendant a chance to either withdraw the motion or amend it to
assert all the § 2255 claims he believes that he has. For what
it's worth, the Court doesn't encourage Anderson to file a § 2255
in this case in any event. For one thing, that section limits the
time for filing a § 2255 motion to one year after the date on
which the judgment of conviction in this case became final; no
other exception to the limitation period seems to apply here. On
that note, United States v. McReynolds, 397 F.3d 479 (7th Cir.
2005), found the rule of United States v. Booker,
125 S. Ct. 738 (2005), not retroactively applicable to cases final on direct
review before January 12, 2005, a category into which this case
seemingly falls. Therefore, Anderson's 18 U.S.C. § 3582 motion to modify
sentence (Doc. 68) is DISMISSED. Anderson's motion to appoint
counsel for this claim (Doc. 67) is DENIED. The CLERK OF
COURT is DIRECTED to mail Anderson a § 2255 form which he
should file should he still wish to pursue this claim.
IT IS SO ORDERED.
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