U.S. v. Smith

Full title: UNITED STATES OF AMERICA, v. 6. MICHAEL D. SMITH, Movant

Court: United States District Court, D. Colorado

Date published: Jul 29, 2009

Criminal Action No. 04-cr-00103-REB, (Civil Action No. 09-cv-01734-REB) (D. Colo. Jul. 29, 2009)

Opinion

Criminal Action No. 04-cr-00103-REB, (Civil Action No. 09-cv-01734-REB).

July 29, 2009

ORDER

ROBERT BLACKBURN, District Judge

The matter before me is defendant's Michael D. Smith's Verified 28 U.S.C. § 2255 Petition To Vacate Judgment of Conviction And Set Aside Sentence [#1771] filed July 22, 2009. Because defendant is proceeding pro se, I review his papers liberally and generously. See Erickson v. Pardus, 551 U.S. 89 ___, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10^th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

Defendant's motion is before me for prompt examination and initial consideration under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Because defendant is proceeding pro se, I waive the requirement under Rule 2(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts that his paper ". . . be in the form of a motion to vacate, set aside, or correct the sentence." For the same reason I waive the requirement under Rule 2(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts that defendant's ". . . motion must substantially follow . . . the form appended to these rules. . . ." Based on my initial consideration of defendants motion, which includes my consideration of the motion and the record of prior proceedings, I can not conclude summarily that the defendant is not entitled to relief and that the motion should be dismissed. Thus, under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, I must order the United States attorney to file an answer, motion, or other response within a fixed time.

THEREFORE, IT IS ORDERED as follows:

1. That by August 28, 2009, the United States Attorney for the District of Colorado SHALL FILE an answer, motion, or other response to defendant's motion with the contents required by Rule 5(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts; and

2. That as provided by Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the defendant may file by September 30, 2009, a reply to the government's answer, motion, or other response.