Opinion
No. 3:03cr0057-1 AS.
March 9, 2007
MEMORANDUM, OPINION AND ORDER
This court takes full judicial notice of the record in this case since its inception on or about June 12, 2003. Of particular moment are the sentencing proceedings on December 10, 2004 and the sentencing memorandum entered that day. What is before this court now is a motion for sentence modification filed pro se by Ralph D. Berkey, Jr. on December 27, 2006. This defendant has had a sequence of very able lawyers representing him throughout the earlier proceedings in this case. This court is mandated to greatly indulge pro se plaintiffs. See Haines v. Kerner, 404 U.S. 519 (1972). See also Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988), cert. denied, 490 U.S. 1008 (1989); and Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). This court is familiar with the mandates of Houston v. Lack, 487 U.S. 266 (1988).
With all deference and due respect, the filing for relief here under Rule 35, Federal Rules of Criminal Procedure, is simply out of time. Nothing was done to waive that time rule and the same must be said under 28 U.S.C. § 2255. See United States v. Smith, 438 F.3d 798 (7th Cir. 2000). Neither does this petitioner-defendant benefit from the provisions of 18 U.S.C. § 3582. The long and short of it is that this court is without authority to entertain the aforesaid motion for sentence modification filed pro se by Ralph D. Berkey, Jr. Therefore, such is now considered and DENIED. IT IS SO ORDERED.