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United States v. Mays

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 23, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KENDAL R. MAYS, DEFENDANT.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Defendant Kendal R. Mays was sentenced on November 10, 2003, to a term of imprisonment of 210 months, followed by 5 years of supervised release. In June 2004, he sought appointment of counsel to represent him on direct appeal. That motion was denied for lack of jurisdiction because no timely appeal was ever taken. In November 2004, Defendant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 under civil case number 04-4238-GPM. That motion was denied in April 2005 based upon a waiver of appeal and collateral challenge rights contained in Defendant's plea agreement, and the Seventh Circuit Court of Appeals denied Defendant's request for a certificate of appealability. In July 2007, Defendant filed, in his criminal case, another motion for appointment of counsel. This time, he seeks appointment of counsel to follow-up on a motion for reduction of sentence that allegedly was promised but never filed and that, in his view, his previous retained counsel failed to secure from the Government.

Federal Rule of Criminal Procedure 35(b) provides, in pertinent part, that "[u]pon the government's motion made within one year of sentencing, the court may reduce a sentence if: (A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person." FED. R. CRIM. P. 35(b)(1). Under certain circumstances, the Government may move for such reduction more than one year after sentencing. See FED. R. CRIM. P. 35(b)(2). It is well-established that only the Government may file a motion pursuant to Rule 35(b). See, e.g., United States v. McDowell, 117 F.3d 974, 979 (7th Cir. 1997). At this time, the Government has not filed a Rule 35(b) motion for a reduction of Defendant's sentence, and there is nothing that new counsel for Defendant could do in this regard. Accordingly, Defendant's motion for appointment of counsel to assist him in having the Government file a Rule 35(b) motion for reduction of sentence (Doc. 138) is DENIED.

IT IS SO ORDERED.

G. Patrick Murphy United States District Judge

20080123

© 1992-2008 VersusLaw Inc.



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