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Burnett v. United States

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


August 26, 2010

ERIC BURNETT, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.

The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Eric Burnett's motion for an extension of time (Doc. 8) to file an affidavit in support of the argument in his § 2255 motion that counsel was constitutionally ineffective for failing to file a notice of appeal after Burnett timely requested he do so. Burnett argues that he needs more time because he is unable to visit the law library of the facility in which he is incarcerated. The Court is puzzled as to why a lack of access to the law library would prevent Burnett from filing a timely affidavit. The affidavit should not contain citations to legal authority. Instead, it should set forth factual details based on Burnett's personal knowledge about his request to his counsel to file a notice of appeal or should identify other acceptable evidence of that request. Burnett should set forth facts, not law. He should tell the Court what happened, not why his argument should prevail.

Nevertheless, the Court GRANTS the motion (Doc. 8), but ORDERS that Burnett shall only have up to and including September 13, 2010, to file an affidavit to supplement his motion. The Court FURTHER ORDERS that the United States shall have ten days from the filing of Burnett's supplement to file a response. If Burnett fails to file a timely supplement, the Court will assume Burnett is unable to allege facts or to provide evidence in support of his allegation and will reject as a basis for § 2255 relief the argument that counsel was ineffective for failing to file a notice of appeal after Burnett made a timely request that he do so.

IT IS SO ORDERED.

20100826

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