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United States of America v. L.A. Bailey

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


October 29, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
L.A. BAILEY, DEFENDANT.

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

ORDER

On October 22, 2012, defendant, pro se, filed a motion for modification of an imposed term of imprisonment pursuant to § 3582(c)(i) (Doc. 54). Specifically, defendant maintains that he is entitled to a sentence reduction in light of the Fair Sentencing Act and United States v. Dorsey, 132 S.Ct. 2321 (2012). The Court notes that the proper vehicle to obtain such relief is through a 28 U.S.C. § 2255 petition and not through 18 U.S.C. § 3582(c). See United States v. Floore, 09-300191-DRH (Doc. 59 )(citing United States v. Yates, 2012 WL 3206689 *1-2 (S.D. Alabama, August 8, 2012)). Thus, the Court DENIES for lack of jurisdiction defendant's motion for modification of an imposed term of imprisonment pursuant to § 3582(c)(i) and finds that defendant should have filed a petition pursuant to 28 U.S.C. § 2255. To assist defendant in this matter, the Court APPOINTS attorney Eugene Howard to represent defendant solely for the Fair Sentencing Act and Dorsey issue.

Further, the Court ADVISES defendant of its intention to re-characterize his § 3582(c) motion as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The record reveals that Bailey has a pending 2255 petition, Bailey v. United States, 11-0843-DRH.*fn1 Therefore, the Court DIRECTS defendant to examine Castro v. United States, 540 U.S. 375 (2003)(Supreme Court held that unless the district judge has warned the prisoner that a motion will be treated as a collateral attack, and offered the opportunity to withdraw or add any other issues that would be included with a motion under § 2255 the motion does not count as the one collateral attack to each prisoner). Thus, defendant should advise the Court if he wants the Court to consider this instant argument as a supplement to his pending § 2255 petition or if he wants to withdraw the motion on or before November 12, 2012. In addition, appointed counsel should address defendant's entitlement to relief under the Fair Sentencing Act and Dorsey. The government shall file its response on or before November 26, 2012.

2012.10.29 14:43:07 -05'00'

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court


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