From Casetext: Smarter Legal Research

United States v. Van

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Dec 17, 2012
Case No. 11-20777 (E.D. Mich. Dec. 17, 2012)

Opinion

Case No. 11-20777

12-17-2012

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY VAN, Defendant.


OPINION AND ORDER DENYING PLAINTIFF'S "EMERGENCY MOTION

FOR STAY OF VOLUNTARY SURRENDER DATE"

Defendant Anthony Van pleaded guilty to making a false statement on a passport application and to using a false Social Security number. After he waived the right to appeal his conviction, (Plea Agree. 6, Dkt. # 15), he was fined and sentenced to nine months' imprisonment and supervised release. On November 7, 2012, his attorney received permission to withdraw. Proceeding pro se, Defendant moves to stay his scheduled surrender to the Bureau of Prisons. A response from the Government is unnecessary.

Defendant has filed a mandamus petition and two appeals with the Sixth Circuit. 12-2193 (6th Cir. Sept. 20, 2012); 12-2257 (6th Cir. Oct. 1, 2012); 12-2322 (6th Cir. Oct. 11, 2012). However, the district court retains jurisdiction despite a petition for mandamus, Ellis v. U.S. Dist. Court (In re Ellis), 360 F.3d 1022 (9th Cir. 2004); Woodson v. Surgitek, Inc., 57 F.3d 1406, 1416 (5th Cir. 1995), and the district court retains jurisdiction to issue orders pertaining to Defendant's release or custody during an appeal, United States v. Krzyske, 857 F.2d 1089 (6th Cir. 1988).

Defendant argues that he is entitled to have an attorney write and submit a motion to stay. Although a defendant enjoys a Sixth Amendment right to counsel at each "critical stage" of a criminal prosecution, United States v. Cronic, 466 U.S. 648, 659 (1984), a post-sentence proceeding in the district court probably fails to qualify as a "stage" to which the Sixth Amendment can attach. See United States v. Taylor, 414 F.3d 528, 536 (4th Cir. 2005); United States v. Palomo, 80 F.3d 138, 142 (5th Cir. 1996). In any event, even if it qualifies as a "stage" in a criminal prosecution, a post-plea agreement, post-sentence motion in the district court is far less important than a "critical" stage, such as a direct appeal. Cf. Evitts v. Lucey, 469 U.S. 387 (1985) (holding that a direct appeal as a matter of right is a "critical stage"). After all, a defendant, once sentenced, cannot withdraw a guilty plea, see Fed. R. Crim. P. 11(e), and a defendant attempting to reduce his sentence generally enjoys no right to counsel, see United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009) (collecting authority). Neither law nor reason suggests that Defendant's post-sentence attempt to avoid reporting to prison amounts to a "critical" moment in this criminal action.

Although in an exceptional case the right to due process might require the presence of counsel during a post-conviction proceeding, Taylor, 205 F.3d at 730, this is not such a case. Defendant says there are "substantial questions" about the propriety of his conviction, but he is quite wrong; there are no "substantial questions," because Defendant waived the right to challenge his conviction. See United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012). Defendant asserts the absence of subject matter jurisdiction, but, as the Government has explained, (Dkt. # 29), the assertion is frivolous.

Title 18 U.S.C. § 3143(b)(1) governs Defendant's request for a stay. It allows the release of a person sentenced to imprisonment until the end of the person's appeal if, among other things, "clear and convincing evidence" shows "that the person is not likely to flee[.]" No evidence shows that Defendant is not a flight risk. To the contrary, Defendant is headed to prison for attempting to use a false name and Social Security number to obtain a passport, and the circumstances of Defendant's crime remain a mystery. Moreover, several of Defendant's statements to the court reveal a complete disregard for the authority of the Government, the judiciary, and the law. (See, e.g., Def.'s Mot. Dis. 5, Dkt. # 28 ("The so called 'statutes' in the 'United States Code' are . . . surrounded by [] issues and facts which make their authority unknown or uncertain[.]"); id. at 6 (warning the court not to commit "acts of usurpation and tyranny").) Accordingly,

IT IS ORDERED that Defendant's "Emergency Motion for Stay of Voluntary Surrender Date" [Dkt. # 38] is DENIED.

________

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, December 17, 2012, by electronic and/or ordinary mail.

Lisa Wagner

Case Manager and Deputy Clerk

(313) 234-5522


Summaries of

United States v. Van

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Dec 17, 2012
Case No. 11-20777 (E.D. Mich. Dec. 17, 2012)
Case details for

United States v. Van

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY VAN, Defendant.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date published: Dec 17, 2012

Citations

Case No. 11-20777 (E.D. Mich. Dec. 17, 2012)