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United States of America v. Terry Jones

October 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TERRY JONES, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Terry Jones ("Jones") has submitted a self-prepared filing that he has captioned "Motion To Recall Judgment and Correction of Illegal Sentence Pursuant to 28 U.S.C. §1367," in which he seeks to challenge the sentence that he is now serving as assertedly "illegal." Needless to say, 28 U.S.C. §1367--which confers supplemental jurisdiction in civil cases--has nothing to do with such a motion in a criminal case. But this Court will not reject Jones' claim on the basis of a tyranny of labels, for that would be unfair to a non-lawyer litigant such as Jones. Instead it will look to his entitlement or lack of entitlement to relief on any terms that may arguably apply.

To that end this Court has retrieved the relevant parts of his criminal case file:

1. the indictment (Dkt. 1);

2. the November 29, 2007 plea agreement (Dkt. 22);

3. the Presentence Investigation Report ("PSI")(undocketed as always, because PSIs are not public documents);

4. Jones' July 24, 2008 sentencing memorandum (Dkt. 35);

5. the United States' July 28, 2008 response to that sentencing memorandum (Dkt. 36);

6. the August 4, 2008 judgment and commitment order; and

7. our Court of Appeals' December 16, 2008 order dismissing Jones' appeal based on his own motion for such dismissal filed the preceding day.

Those documents confirm beyond dispute that quite apart from whether Jones' notion of "illegality" can survive scrutiny, he is clearly out of time in his current effort to undo his conviction and sentence.

What Jones seeks to rely on in his current filing is an assertion that, though known to him even before he chose to plead guilty, he had never previously presented either to this sentencing court or to the Court of Appeals in his filed, but then abandoned, appeal. By way of background, Count One of the indictment, to which Jones pleaded guilty, charged him with the violation of 18 U.S.C. §922(g)(1),*fn1 an offense conventionally described as "felon in possession of a firearm":

It shall be unlawful for any person--

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year * * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition ...


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