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Prepared a motion. A little history person has already served 20 years under the old mandatory sentencing for a drug case. My question is...If someone has a federal rule criminal procedure 52b issue, and the court of appeals interpretation of this rule was erroneous, then, how should they attack this issue? 1. file a rule 52 b motion. or 2. file a 18 u.s.c. 2241 motion? Thank you.

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Answered in 1 hour by:
4/3/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 1,424
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. I believe I understand the situation, but please do not hesitate to correct me or provide additional details. If this is a federal criminal case and the person was sentenced at the district court level and then a motion to amend the judgment under Rule 52(b) was filed and then a decision was appealed to the U.S. Court of Appeals for the relevant circuit. If there was a decision by the appeals court, the next available steps are a motion for rehearing or motion for rehearing en banc (the entire appellate court for the circuit) or a petition for certiorari to the U.S. Supreme Court - each of these options must be filed pretty soon after the court decision being challenged. If these direct appeals (direct appeal meaning going from one court to the court immediately above/superior to it and then to the next) are not successful, the most common method for seeking relief is a Petition for Habeas Corpus Relief under 28 U.S.C. § 2255. 28 U.S.C. § 2241 provides some additional information about these types of petition. It is important that you handle this petition appropriately as you generally only get one chance at it and the grounds for filing for this type of relief are limited to issues like ineffective assistance of counsel, that the sentence was excessive in a constitutional sense, or the sentence was in excess of the maximum. You can view the actual statute setting out this type of relief here: https://www.law.cornell.edu/uscode/text/28/2255

A motion under Rule 52(b) must be filed within 28 days of the date on which the judgment was entered. If that time has passed, there would be no relief under this rule.

I hope this information helps. If you need further assistance, please reply to this email. I will be away from my computer for a bit but will respond to any follow up questions when I return. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 4 months ago
Thank you so very much. There are so many discrepancies in this case. There was no hard evidence, no tapes, just the word of a previous convicted felon. And...so much other things that seem flawed. I may be asking you additional questions in this matter

Not a problem at all; just reply this email with any additional questions.

Attorney Wendy
Category: Legal
Satisfied Customers: 1,424
Experience: Member at Keefer & Keefer LLC
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Attorney Wendy and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 months ago
Hello....this answer was on a federal level correct!

That is correct; petitions for writ of habeas corpus can be filed in state court when individuals are held in state penitentiaries or in federal court where the individual was convicted in a federal court and is in federal custody. The habeas statutes referenced in my answer and the appellate process relates to the federal side.

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Customer reply replied 4 months ago
Can I by chance recommend an attorney that would be willing for me to pay for their services?
Customer reply replied 4 months ago
Can you***

I am happy to see if I can find someone in your area who can help. I will let you know if I locate someone.

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Customer reply replied 4 months ago
Please and thank you. I do prefer a woman. Sorry to be picky. I live in Indianapolis Indiana. Zip code 46204. I am forever indebted to you.

I have done a quick search and asked some colleagues. I have not gotten any personal recommendations so I cannot endorse any of these attorneys and do not personally know them, but below are some firm's in the state that handle these kinds of matters and that have female attorneys on staff. Also, I wanted to share this link with you that summarizes a federal prisoner's habeas corpus options, as it provides a very brief but good summary: https://www.justice.gov/usam/usam-9-37000-federal-habeas-corpus

Here are the websites of the firms I found that handle PCRs (post-conviction relief) and have female attorneys: https://www.kefferbarnhart.com/attorneys/brooke-smith/

http://lmjattorney.com/habeas_corpus.html

https://www.kammenlaw.com

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Customer reply replied 4 months ago
Thank u so much. I so appreciate your help.

You are certainly welcome!

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Customer reply replied 4 months ago
I have another question...sorry....they come up from my fiancé and i ask you. well the 7th cir court of appeals interpretation to rule 52 b was plainly erroneous at the time of my direct appeal, in which
apprendi v new jersey and crawford v washington both applied to my case, while my direct was still pending.
however the 7th cir was of the assumption, that since i did not object in at trial that they did not have the authority to apply either case to my direct appeal, however, in 2005 the 7th cir applied u.s v booker to my case, which came after apprendi and crawford. so at this time, the 7th circuit enganged in a fundamental miscarriage of just. for not applying the law in effect at the time they rendered their decision in my case. which is a violation of clearly established law.
also, the chief judge at the time of my appeal. stated in a case, that the sixth amendment and the reasoning of apprendi
was not yet understood , 2 years after the supreme court decided apprendi. so my question to the court is,
how could the court adequately adjudicate my proceedings if the reason of apprendi and the sixth amendment was not understood by the chief justice of the 7th cir ? and since my case is dealing with a new rule of law at the time of my direct appeal was decided, i think rule 52 b is the correct way to get this issue heard, unless you know of another way ? Thank you...Mark A White

These issues would be errors of law that can be addressed in a petition for writ of habeas corpus relief. Whether a new case applies to currently pending cases varies depending on the decision at issue, but where a constitutional issue exists in sentencing - as in Booker - it should be applied retroactively to cases currently pending on appeal.

Sorry for the delay in the answer; I didn't see this follow-up come through until today.

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Customer reply replied 4 months ago
this is my question to you ms Wendy.
when apprendi v new jersay was decided, my direct appeal was pending and the court of appeals applied the wrong standard.
however, when crawford v washington was decided, the district judge and the court of appeals refused to apply the law in effect at the time they rendered their decision in my direct appeal. but 1 year later, they both applied u.s v booker to my case. allowing the district judge the option to resentence or not.
how ever i am challenging the entire 7th circuit court of appeals interpretation of fed r crim p rule 52(b) and clearly established law was erroneously applied to my case. now i would love for you to read my motion and if you like it, to please get on board with me in my fight. b/c i mailed it to the court last night and can mail you a copy if you like, ? so please send me your address where i can mail you a copy and send me your email address so that i can correspond with you please thank you, ***** ***** white 05671-028 . po box 5000 bruceton mills, wv 26525
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