Opinion
3:05cr24/LAC, 3:06cv248/LAC/MD.
August 17, 2006
ORDER
Defendant has filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 and a motion to proceed in forma pauperis. (Doc. 130 131). Because no filing fee is required in § 2255 cases, her motion for leave to proceed in forma pauperis is DENIED as moot. Incorporated within the § 2255 motion, although not separately docketed, is a motion for permission to amend section 2255 motion and submit a supporting brief out of time. Defendant seeks an additional 65 days after the necessary documents have been received from the Department of Justice, which may be 9 additional months, to submit her supplement. The district court lacks jurisdiction to consider the timeliness of a § 2255 petition, or in this case a supplement, until it is actually filed. See Green v. United States, 260 F.3d 78, 82 (2nd Cir. 2001); United States v. Leon, 203 F.3d 162, 163 (2nd Cir. 2000); United States v. McFarland, 125 Fed.Appx. 573, 2005 WL 768731 (5th Cir. 2005); Reed v. United States, 13 Fed. Appx. 311, 2001 WL 700811 (6th Cir. 2001). Therefore her request will be denied. The court will consider and rule on a properly filed motion to amend or supplement, if it is filed along with the proposed amendment or supplement, at a later time.
Accordingly, it is therefore ORDERED:
Defendant's motion for leave to proceed in forma pauperis (doc. 131) is DENIED as moot.
Defendant's motion for permission to amend section § 2255 and submit a supporting brief out of time (doc. 130) is DENIED without prejudice.
The clerk of this court is directed to furnish a copy of this order and of the motion to vacate, set aside or correct sentence to the Office of the United States Attorney for this district which office shall have sixty (60) days from the date this order is entered on the docket in which to show cause, if any, why the relief requested should not be granted.
DONE AND ORDERED.