Free Order Setting Response Deadline - District Court of Delaware - Delaware

Case 1:05-cr—OOOO4-SLR Document 45 Filed O2/28/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL CALEF GANDY, )
Petitioner, g
)
v. )
) Criminal Action No. 04—l0—SLR
) Criminal Action No. 05-04-SLR
UNITED STATES of AMERICA, )
Respondent. ;
O R D E R
WHEREAS, petitioner filed a motion titled “motion for
reconsideration of sentence.” (D.I. 103 in Crim. A. No. 04-10;
D.I. 29 in Crim. A. No. 05-4); and
WHEREAS, in its response, the Government:
(l) concluded that petitioner's motion for
reconsideration of sentence should be denied, but that
petitioner should assert his arguments pursuant to 28
U.S.C. § 2255; and
(2) provided a sample order that construed petitioner’s
motion for reconsideration as a § 2255 motion, notified
petitioner that the Antiterrorism and Effective Death
Penalty Act of l996 ("AEDPA"), 28 U.S.C. § 2244,
effectively precludes petitioners from filing a second
or subsequent § 2255 motion except in the most unusual
of circumstances, and informed petitioner that the

Case 1:05-cr—OOOO4-SLR Document 45 Filed O2/28/2007 Page 2 of 3
AEOPA applies to his pending motion, see United States
v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000); and
(3) provided petitioner with the Government's version
of an AEOPA election form containing four possible
responses to the re—characterization of petitioner’s
motion as a § 2255 motion. (0.1. 115 in Crim. A. No.
04-10; 0.1. 40 in Crim. A. No. 05-4); and
WHEREAS, on January 22, 2007, petitioner filed a
handwritten document he referred to as an amended § 2255 motion
along with the AEDPA election form provided by the Government,
indicating that he wanted the court to construe his motion for
reconsideration as a § 2255 motion and that he wished to amend
his § 2255 motion within the next 30 days. (0.1. 116 in Crim. A.
No. 04-10; 0.1. 41 in Crim. A. No. 05-4); and
WHEREAS, petitioner did not file any further amendments
of his § 2255 motion in the prescribed 30 days.
NOW, THEREFORE, 1T 1S OROERE0 this gghb day of
February, 2007, that:
1. Pursuant to petitioner Michael Calef Gandy’s AEDPA
election form and attached memorandum, the court construes
petitioner’s motion for reconsideration as a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(0.1. 103 and 0.1. 116 in Crim. A. No. 04-10; 0.1. 29 and 0.1.
2

Case 1:05-cr-OOOO4-SLR Document 45 Filed O2/28/2007 Page 3 of 3
41 in Crim. A. No. 05-4)
2. The clerk of the court shall open two civil actions for
petitioner’s newly construed § 2255 motions. (D.l. 103 and D.l.
116 in Crim. A. No. 04-10; D.l. 29 and D.I. 4l in Crim. A. No.
05-4)
3. The Government shall respond to petitioner’s motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255, on or before pq.,} 4j, GLUO7 . (D.l. l03 and
D.l. ll6 in Crim. A. No. 04—l0; D.l. 29 and D.T. 4l in Crim. A.
No. 05-4)
United State; District Judge
3