Opinion
No. 10-30005-DRH
11-21-2012
UNITED STATES OF AMERICA, Plaintiff, v. L.A. BAILEY, Defendant.
ORDER
HERNDON, Chief Judge:
Now before the Court is attorney Eugene Howard's November 19, 2012 memorandum in response to the Court's October 29, 2012 Order and motion to withdraw as counsel (Doc. 61). Mr. Howard moves to withdraw from this matter as he maintains that defendant is not entitled to a reduction because of his career offender status. Mr. Howard also states that after communicating with defendant that defendant wishes to proceed with his motion as a supplement to his pending 28 U.S.C. § 2255.
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). On October 29, 2012, the Court noted 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)) (Doc. 55). Thus, the Court denied for lack of jurisdiction defendant's motion for modification of an imposed term of imprisonment pursuant to § 3582(c)(i), informed defendant of its intent to re-characterize the motion as one pursuant to 28 U.S.C. § 2255 and appointed Mr. Howard to represent Bailey solely for the FSA and Dorsey.
The Court notes that defendant filed the same motion on November 16, 2012 (Doc. 60).
Based on the representations in Mr. Howard's memorandum, the Court GRANTS Mr. Howard's request to withdraw as counsel. Further, the Court ALLOWS defendant up to and including December 21, 2012 to file a response regarding the FSA, Dorsey and the career offender issue. Thereafter, the Court ALLOWS the government two weeks from defendant's response to file a reply.
IT IS SO ORDERED.
David R. Herndon
Chief Judge
United States District Court