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United States v. McNeal

United States District Court, D. Colorado

March 26, 2018

UNITED STATES OF AMERICA,
v.
PHINEHAS LEE MCNEAL, Defendant/Movant.

          ORDER DENYING AMENDED 28 U.S.C. § 2255 MOTION

          Raymond P. Moore United States District Judge.

         The matter before the Court is the Amended Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“amended § 2255 motion”), filed pro se by Phinehas Lee McNeal, on January 26, 2018. (ECF No. 405). Mr. McNeal filed his original Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“original §2255 motion”), on November 29, 2017. (ECF No. 398). On November 30, 2017, the Court reviewed the original § 2255 motion and concluded that the motion did not comply with the Rules Governing Section 2255 Proceedings for the United States District Courts because Defendant failed to allege specific facts in support of his claims that demonstrated his rights had been violated. Therefore, the Court ordered Mr. McNeal to file an amended 28 U.S.C. § 2255 Motion within thirty days. (ECF No. 399).

         On January 26, 2018, Mr. McNeal filed an amended § 2255 Motion (ECF No. 405). He challenges his convictions and sentence on numerous grounds, including, but not limited to, ineffective assistance of counsel. On February 14, 2018, the Court ordered Mr. McNeal to file a second amended § 2255 motion within thirty days. (ECF No. 407). Instead, on February 26, 2018, Mr. McNeal filed a Motion to Reduce Sentence, (ECF No. 408), which was denied by the Court on February 27, 2018, (ECF No. 409). Mr. McNeal has failed to file a second amended § 2255 motion as directed within the time allowed. Therefore, his amended § 2255 motion (ECF No. 405) is the operative pleading. For the reasons stated below, which were also detailed in the Court's February 14, 2018 Order, Mr. McNeal's amended § 2255 motion will be denied.

         The Court must construe the amended motion liberally because Mr. McNeal is not represented by an attorney. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. Hall, 935 F.2d at 1110.

         In his amended §2255 motion, Mr. McNeal asserts the following claims:

(1) Ineffective counsel & inadequate representation;
(2) Right of allocution;
(3) (Withdrawn);
(4) Excessive sentence for crime;
(5) “Lack of Emotional Support from My Biological Father;”
(6) Mental emotional health issues/ Diminished capacity;
(7) The right to self-representation was violated

(ECF No. 405).

         The amended § 2255 motion, similar to his original § 2255 motion, does not comply with the Rules Governing Section 2255 Proceedings for the United States District Courts because Defendant fails to allege specific facts in support of his claims that demonstrate his rights have been violated. Pursuant to Rule 2(b)(2), the Defendant must "state the facts supporting each ground." Instead of alleging specific facts in his amended motion, Mr. McNeal simply states, “see . . . supporting facts” for each of his claims. (ECF No. 405 at 4). The documents attached to his amended § 2255 motion are titled “supporting facts, ” and they include a short letter (for claim one), select pages from the trial transcripts (with highlighted sections for claim one), select pages from his opening appellate brief to the Tenth Circuit (for claims two and seven), select pages from the sentencing hearing transcript (with highlighted sections for claims four and six), select pages from his PSI (for claims four and six), and a narrative regarding his biological father (for claim five). The “supporting facts” in these attachments do not adequately allege specific facts in support of his ...


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