Opinion
Civil No. 2:05-CV-0494J, Crim. No. 2:04-CR-102BSJ.
August 18, 2005
ORDER
An order entered in the above-entitled case bore an incorrect case number of 2:05-CV-408. As a result, the order was inadvertently filed by the Clerk in a similar, but earlier, case. The Clerk is directed to file the order bearing the correct case number in the above-entitled case.
SO ORDERED.
ORDER
On June 13, 2005, Petitioner DARRELL D. PROWS, acting pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, commencing this proceeding. Petitioner's motion asserts a single ground for relief under § 2255: ineffective assistance of counsel in his criminal proceeding. This § 2255 motion is identical to a § 2255 motion filed pro se by Mr. Prows on May 9, 2005. See Darrell D. Prows v. United States of America, Case No. 2:05-CV-408BSJ (D. Utah, filed May 9, 2005).Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts ("2255 Rules"), the court reviewed the May 9th motion on a preliminary basis, and noted two procedural defects: (1) the motion was premature because it was filed prior to "the date on which the judgment of conviction becomes final" in his criminal proceeding, United States of America vs. Darrell D. Prows, Case No. 2:04-CR-102BSJ — the date upon which the time for filing a § 2255 motion commences to run — and (2) the motion, treated as a filing in the Petitioner's criminal proceeding as it must be under Rule 3(b) of the 2255 Rules, was made without the signature of counsel in a proceeding in which the Petitioner is already represented by counsel of record, in this case, Mr. L. Clark Donaldson of the Utah Federal Defender Office.
Rule 4. Preliminary Review.
(a) Referral to a Judge. The clerk must promptly forward the motion to the judge who conducted the trial and imposed sentence or, if the judge who imposed sentence was not the trial judge, to the judge who conducted the proceedings being challenged. If the appropriate judge is not available, the clerk must forward the motion to a judge under the court's assignment procedure.
(b) Initial Consideration by the Judge. The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take action the judge may order.
Rule 3(b) of the 2255 Rules reads:
(b) Filing and Service. The clerk must file the motion and enter it on the criminal docket of the case in which the challenged judgment was entered. The clerk must then deliver or serve a copy of the motion on the United States attorney in that district, together with a notice of its filing.
Fed.R.App.P. 4(b)(1)(A) provides that "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after . . . (i) the entry of either the judgment or the order being appealed;. . . ." The Judgment and Commitment was entered in Mr. Prows' criminal proceeding on May 31, 2005, ( see Judgment in a Criminal Case, filed May 31, 2005 (dkt. no. 162), in United States of America vs. Darrell D. Prows, Case No. 2:04-CR-102BSJ (D. Utah)); the time for Mr. Prows to file a notice of appeal expired ten days later on June 10, 2005, see Fed.R.App.P. 26(a). However, Fed.R.App.P. 4(b)(1)(B) provides that "[w]hen the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of: (i) the entry of the judgment or order being appealed; or (ii) the filing of a notice of appeal by any defendant." (Emphasis added.)
The time for an appeal by the government obviously had not lapsed as of June 13, 2005, the date that Mr. Prows filed his current § 2255 motion, and Mr. Prows' judgment of conviction had not yet become "final" for purposes of § 2255 as of that date. On June 23, 2005, the government filed a notice of appeal from Prows' May 31 Judgment and Commitment. ( See Notice of Appeal, filed June 23, 2005 (dkt. no. 167).)
Mr. Prows' current § 2255 motion would once again appear to be premature.
Moreover, it remains the case that Mr. Prows is represented by counsel in his criminal proceeding, and motions filed in connection with that proceeding require counsel's signature. DUCivR 83-1.3(c) provides that "[w]henever a party has appeared by an attorney, that party cannot appear or act thereafter in its own behalf in the action or take any steps therein unless an order of substitution first has been made by the court after notice to the attorney of each such party and to the opposing party." Thus, as this court previously ruled as to his May 9th filing, Mr. Prows' § 2255 motion may not be filed without the signature of Petitioner's counsel of record. ( See Order, filed May 12, 2005 (dkt. no. 2), in Darrell D. Prows vs. United States of America, Case No. 2:05-CV-408BSJ (D. Utah).)
On June 14, Mr. Donaldson filed a motion to withdraw as counsel for Mr. Prows in the criminal proceeding, (Motion for Leave to Withdraw, filed June 14, 2005 (dkt. no. 164), in United States of America vs. Darrell D. Prows, Case No. 2:04-CR-102BSJ (D. Utah)), but unless or until that motion is granted, Mr. Donaldson remains Mr. Prows' counsel of record in his criminal proceeding. See DUCivR 83-1.4.
For the reasons that Mr. Prows' § 2255 motion is premature, and may not be filed in his criminal proceeding without the signature of Petitioner's counsel of record,
IT IS ORDERED that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed June 13, 2005 is hereby STRICKEN and the above-captioned proceeding hereby DISMISSED without prejudice.