Opinion
No. 03 C 295, (90 CR 57-1)
February 7, 2003
SUPPLEMENT TO MEMORANDUM OPINION AND ORDER
This Court's January 23, 2003 memorandum opinion and order ("Opinion") in part reconfirmed that the document that Eddie Lee Fryer ("Fryer") had filed with the United States District Court for the Western District of Virginia under the claimed rubric of 28 U.S.C. § 2241 was really a Section 2255 motion (that same conclusion had been reached by the District Judge in Virginia, and that was the predicate for the transfer to this District, where Fryer had been convicted and sentenced). Then the Opinion went on to hold that Fryer's present effort was a "second or successive motion" that the last paragraph of Section 2255 (which incorporated by reference Section 2244(b)) required him to tender to the Court of Appeals in the first instance, rather than to a District Court.
All further references to Title 28's provisions will simply take the form "Section . . ."
On February 5, 2003 this District Court's Clerk's Office received a letter from Fryer in which he sought "to place on record his `timely objection' to the re-characterization of the original motion from under Title 28 U.S.C. § 2241 to Title 28 U.S.C. § 2255" — a response by Fryer to the January 14 communication (photocopy attached) that apprised Fryer of the transfer from the Virginia District to this District Court and that labeled his filing as a Section 2255 motion (just as the transferor judge had). Because Fryer's letter submission had been notarized back on January 22 (though it is difficult to understand why it should then have taken fully two weeks to get to our Clerk's Office), it is obvious that the letter crossed in the mails with the Opinion, a copy of which this Court had of course sent to him.
Fryer must be disabused of the notion that he can attach the Section 2241 label to his filing and can thereby take an end run around the already-referred-to "second or successive motion" limitation imposed by Section 2255 (as well as around Section 2255's short statute of limitations). To that end this Court calls his attention to our Court of Appeals' November 6, 2002 decision in Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002). That decision makes it crystal clear that Fryer cannot successfully invoke Section 2241 on the grounds that he asserts or for the relief that he seeks. This Court therefore reconfirms both the analysis and the conclusion reached in the Opinion.
OBJECTION by Eddie Lee Fryer to court's recharacterization of his original motion (Attachment)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS 60604
CLERK OF COURT UNITED STATES DISTRICT COURT 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS
IN RE: 03C-0295
DEAR CLERK:
COMES NOW, petitioner, pro-se, Eddie Lee Fryer, #01029-424, to acknowledge receipt of the correspondence from this Clerk of Court. The letter was dated January 14, 2003, whereas; "it informed the petitioner that the motion has been entered on court docket as a motion other than the titled motion filed by petitioner.
Petitioner now comes to place on record his "timely objection" to the re-characterization of the original motion from under Title 28 U.S.C. § 2241 to Title 28 U.S.C. § 2255, if in any way this court is only seeking to apply the latches without adjudicating the case on the merits.
Petitioner's case within the motion under § 2241 is supported by uncontroverted evidence of constitutional deprivations due to overzealous and vindictive prosecution by the government attorney and depeties as well. In a attempt to convict members of the " El Rukens", whereas petitioner for not knowing information and supplying it to the government, was denied fundamental constitutional rights. See U.S. v. Boyd, 833 F. Supp. 1377 (N.D. Ill. 1993), i.d. at 1281.
For the reasons stated within the above mentioned case, concerning the tradegy for the "lead" prosecutor who, in seeking to attain the laudable goal of ridding society of an organization of predatory career criminals, was willing to abandon fundamental notions of due process of law and deviate from acceptable standards of prosecutorial conduct. The others who followed his lead or failed to supervise him properly, of course, share in this disgrace. [ The pertinent insert taken from the above analysis from the court of the N.D. Ill., No.: 89-CR-908].
Therefore, at minimum, even if this motion was to be docketed as a motion under § 2255, for the time it took petitioner to uncover this evidence to support his claim of denied due process, and prosecutorial misconduct, as well as ineffective assistance of counsel, through the exercise of due diligence, petitioner would aver that he would still fall in the arena of "newly discovered evidence", so as to not have this case dismissed prior to adjudicating the merits of such important claims.
For the reasons stated herein, petitioner "objects" to the re-characterization, but will accept it in the event the merits of this motion is properly adjudicated.
RESPECTFULLY SUBMITTED! S/___________________ EDDIE LEE FRYER # 01029-424 USP, LEE COUNTY P.O. BOX 305 JONESVILLE, VA. 24263-0305 CC/CLK OF CT. FILE 1/22/03
County of LEE Commonwealth of Virginia
The foregoing instrument was acknowledged before me this 22nd day of January, 2003 by Eddie Fryer (#01029-424).
S/_______________ Alisha Hall Notary Public
My Commission Expires December 31, 2006.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS 60604
MICHAEL W. DOBBINS PRISONER CORRESPONDENCE CLERK 312-435-5794
January 14, 2003
Eddie Lee Fryer #01029-424 P.O. Box 305 Jonesville, VA 24263
Dear Mr. Fryer:
We hereby inform you that your motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 has been transferred to this court.
Please be advised that this motion has been assigned to: JUDGE SHADUR MAGISTRATE JUDGE MASON
for consideration, and that these matters will proceed under case number: 03C 0295
Please indicate your assigned case number on all future documents submitted for docketing in this case. Furthermore, you must keep the Court informed of your address throughout the pendency of your motion. Failure to do so may result in dismissal of your motion for want of prosecution.
Sincerely,
Prisoner Correspondent