Opinion
CASE NO. 5:05-cr-45-RS-AK.
May 1, 2008
ORDER
This cause is before the Court on Defendant's amended motion to vacate. Doc. 259. Pursuant to the Rules Governing § 2255 Proceedings, the Court has reviewed the motion, and the Government will be required to file an answer or other appropriate response. If appropriate, the Government shall include the initial brief or other briefs from the direct appeal and may rely on the statement of facts presented there. In fashioning its response, the Government should also address the issues raised in Docs. 264 and 266, which should be considered as supplements to the amended motion to vacate. The Court attempted to get all of the issues which Defendant wanted considered into a single document, but Defendant has persisted in filing separate motions, a practice which the Order will put to an end. Defendant may respond to the Government's arguments within the time set by this order, but he is not required to do so.
Upon receipt of the Government's arguments and Defendant's response, if any, the Court will review the file to determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the court will dispose of the motion as justice requires pursuant to § 2255 Rule 8(a).
Defendant has also filed a motion for discovery of the grand jury transcripts, Doc. 225, and a second motion for discovery regarding the racial composition of the grand jury venire from 1975-2005. Doc. 265. Having carefully considered the matter, neither motion is well taken. The issues raised in the motions which are related to the motions to dismiss are generally the types of issues which must be raised before or during trial and on appeal or they are waived unless the defendant can overcome certain hurdles for the procedural default of the claims. Until the Government answers, the Court does not know whether the requested information is necessary for resolution of the claims related to the indictment in this case.
Finally, Defendant has filed a motion for ruling on the motions to dismiss. Doc. 270. Because the motions to dismiss are being addressed as supplements to the amended motion to vacate, they will be considered at the time the Court rules on the amended § 2255 motion. The motion is therefore denied.
Accordingly, it is ORDERED:
That the Clerk shall furnish a copy of Defendant's amended motion to vacate, Doc. 259, and this order to the United States Attorney for this district, who shall file an answer or other appropriate pleading by July 14, 2008;
That in drafting its response, the Government should also address the issues raised in Documents 264 and 265;
That if review of the PSR is necessary, the Probation Office shall allow counsel for the Government to review the PSR upon request;
That Defendant shall not file any additional motions in this cause without prior permission from the undersigned, though he may file a reply to the Government's response no later than August 14, 2008;
That if Defendant attempts to file any additional motions without prior authorization, the Clerk shall immediately return them to Defendant without filing them with a copy of this Order attached;
That the motion for discovery, Doc. 225, is DENIED;
That the second motion for discovery, Doc. 265, is DENIED;
That the motion to rule, Doc. 270, is DENIED. DONE AND ORDERED at Gainesville, Florida.