Opinion
CR. NO. S-08-0258 EJG
10-24-2011
UNITED STATES OF AMERICA, Plaintiff, v. DALONO RANKINS, Defendant.
ORDER DIRECTING UNITED STATES TO FILE RESPONSE
Defendant, a federal prisoner proceeding pro se, has filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2241. Defendant pled guilty June 18, 2010 to possession of cocaine base with intent to distribute and possession of a firearm in relation to a drug trafficking offense. He was sentenced March 25, 2011 to a term of 180 months imprisonment and eight years supervised release. The plea was entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In addition to the agreed upon length of sentence, defendant also agreed to waive his rights to appeal and collaterally attack his conviction and sentence, specifically agreeing not to file a motion under section 2255 or 2241 of Title 28. Plea Agreement, 7:8-12. Finally, defendant waived any right to allege that the offense charged in the indictment and to which he pled guilty involved crack cocaine. Plea Agreement, 8:6-13.2.
Now, despite the express language of his plea agreement, defendant has filed a document claiming his "actual innocence" and seeking to vacate his conviction and sentence due to a purported change in the substantive law involving cocaine sentencing. Without deciding the issue of waiver at this juncture, the court directs the government to file a response to the motion within 30 days from the filing date of this order addressing both waiver of collateral attack, and the merits of defendant's claim. Defendant may file a reply within 30 days after service of the government's response. The matter will stand submitted upon receipt of the last brief.
IT IS SO ORDERED.
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT