Opinion
Case Nos. 5:88cr5040/RV, 5:10cv284/RV/EMT.
February 15, 2011
ORDER
This cause is before the court upon referral from the clerk. Defendant commenced the current action pursuant to 28 U.S.C. § 2255 on October 22, 2010 (Doc. 281). He filed an amended motion on November 30, 2010 (Doc. 283), but failed to file a copy of the amended motion as the court had directed (Doc. 282). On December 17, 2010, the court entered an order giving Defendant twenty-one (21) days in which to provide the service copy of his amended motion (Doc. 286). Defendant failed to provide the service copy, therefore, on January 19, 2011, the court issued an order requiring Defendant to show cause, within twenty-one (21) days, why this action should not be dismissed for failure to comply with an order of the court (Doc. 287). The time for compliance with the show cause order has now elapsed, and Defendant has not provided the court with a service copy of his amended motion.
The docket reflects that none of the court's orders have been returned as undeliverable. The Bureau of Prisons' online inmate locator service, however, indicates that Defendant presently is in transit. Therefore, Defendant will be given one final opportunity to file a copy of his amended motion before the court concludes that Defendant has decided to abandon this action. If Defendant does not file a copy of his amended motion within twenty-one (21) days of this order, the court will recommend that this action be dismissed for failure to comply with an order of the court.
The docket reflects that Defendant was convicted of drug and firearm charges well over twenty years ago — in 1988 — and has previously pursued relief, unsuccessfully, pursuant to § 2255. Thus it appears that the present motion is subject to dismissal for being impermissibly successive. Moreover, to the extent Defendant now seeks relief under the Fair Sentencing Act ("FSA") of 2010, he is advised that such relief appears to be foreclosed by the Eleventh Circuit's decision in United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (concluding that "because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment.").
Accordingly, it is ORDERED:
1. Defendant shall have twenty-one (21) days in which to file a copy of his amended motion to vacate (Doc. 283).
2. The clerk shall terminate Defendant's motion to vacate filed October 22, 2010 (Doc. 281), as it has been superceded by the amended motion.
DONE AND ORDERED this 15th day of February 2011.