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Margo v. United States

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS ROCK ISLAND DIVISION


September 7, 2007

RENEE MARGO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Joe Billy McDade United States District Judge

OPINION AND ORDER

Before the Court is a Motion to Withdraw filed by Petitioner's counsel. (Doc. 8.)

Petitioner was convicted in underlying criminal case on drug and drug related charges. She sent a letter to the Court stating that her attorney in that case proceeded despite having a conflict of interest. The Court construed the letter as a Motion to Vacate under 28 U.S.C. § 2255 and appointed counsel to investigate the matter. Appointed counsel has investigated the matter, does not believe that a Motion under 28 U.S.C. § 2255 could have any merit, and has filed a Motion to Withdraw.

This Court considers this a response to the concerns originally raised in Petitioner's letter. However, a federal court cannot recharacterize a pro se litigant's filing with the Court as a first § 2255 motion unless the court "first informs the litigant of its intent to recharacterize, warns the litigant that this recharacterization means that any subsequent § 2255 motions will be subject to the restrictions on "second or successive" motions, and provides the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has." Castro v. United States, 540 U.S. 375 (2003).

IT IS THEREFORE ORDERED, that Petitioner be notified that this Court intends to recharacterize her letter as a request for habeas relief under 28 U.S.C. § 2255. Petitioner is warned that any subsequent § 2255 motions will be subject to the restrictions on "second or successive" motions. Petitioner is also GRANTED LEAVE to withdraw her current letter which was construed as a § 2255 or re-file a request for habeas relief under 28 U.S.C. § 2255 within thirty days. Otherwise, this Court will construe her current letter as a Petition under § 2255 and will proceed with ruling upon the merits of the case before the Court. The clerk is directed to send a copy of this Order directly to Petitioner. The Motion to Withdraw (Doc. 8) will be ruled upon when the Court addresses the underlying habeas Petition.

ENTERED this 6th day of September, 2007.

20070907

© 1992-2007 VersusLaw Inc.



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