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United States v. Stewarts

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


September 28, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DEVON STEWARTS, DEFENDANT.

The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

Before the Court are three motions filed by pro se by Defendant Stewarts. Defendant has filed a motion to withdraw counsel of record and proceed pro se (Doc. 62), a motion to proceed in forma pauperis (Doc. 63), and a motion to receive sentencing memorandum, plea agreement, and sentencing transcripts (Doc. 64).

Once a district court enters final judgment, it lacks jurisdiction to continue to hear related issues, except to the extent authorized by statute or rule. See Carlisle v. United States, 517 U.S. 416 (1996). The following post-judgment motions are allowed if timely filed. Under FEDERAL RULE OF CRIMINAL PROCEDURE 35, revision is proper only within 7 days, unless the prosecutor files an appropriate motion or the court of appeals remands. Further, a Rule 33 motion for new trial based in evidence must be brought within 3 years after the verdict and a Rule 33 motion for new trial based on other grounds must be brought within 7 days after the verdict. Lastly, a collateral attack under 28 U.S.C. § 2255 has a 1 year statute of limitations.

Here, Stewarts does not cite any case law or statute which allows the Court to consider this motion. Stewarts seeks to withdraw his current attorney and proceed pro se. He has also asked to be granted in forma pauperis status. Rule 35 is inapplicable because this motion does not appear to be brought to correct the sentence arithmetical, technical or other clear error and the Government has not filed a motion to reduce. Likewise, Rule 33 does not apply because Defendant is not trying to seek a new trial. Therefore, the only other possible procedural avenue that Stewarts could bring this motion is a § 2255 collateral attack and he does not appear to be currently seeking relief in a § 2255 collateral attack.*fn1 Based on the case law, the Court must treat a post-judgment motion as a collateral attack if it meets the description of § 2255. See Romandine v. United States, 206 F.3d 371 (7th Cir. 2000). After reviewing the pleading, it is not clear to the Court that Stewarts intends to pursue a collateral attack. Because the Court finds that Stewarts' motions do not fall under any of the exceptions authorized by statute or rule, the Court lacks jurisdiction to entertain the motion.s Therefore, the Court DENIES Stewarts' motion to withdraw counsel of record and proceed pro se (Doc. 62) and motion to proceed in forma pauperis (Doc. 63).

Further, Stewarts has filed a motion requesting transcripts, sentencing memorandum, and plea agreement. Defendant states that he needs these documents so that he may pursue a collateral attack in the future. At this time, however, judgment has been entered in Defendant's case and currently there are no pending appeals; therefore, the transcripts are not necessary for either an effective defense or appeal. See Britt v. North Carolina, 404 U.S. 226, 227 (1971). Further, Defendant has not yet filed a § 2255 action.*fn2 As to the other documents that Stewarts requests, Defendant has not shown that he has exhausted all other means of access to those documents and in any event, as previously stated, once a district court enters final judgment it lacks jurisdiction to continue to hear related issues, except to the extent authorized by statute or rule. It does not appear that Defendant's motion falls within any of the authorized exceptions.

Therefore, the Court DENIES for lack of jurisdiction Defendant's motion to withdraw counsel and proceed pro se (Doc. 62), motion to proceed in forma pauperis (Doc. 63), and motion to receive sentencing memorandum, plea agreement, and sentencing transcripts (Doc. 64).

IT IS SO ORDERED.

David R Herndon Chief Judge United States District Court


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