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United States v. Waiters

United States District Court, E.D. New York

March 20, 2017

UNITED STATES OF AMERICA
v.
DEXTER WAITERS, Defendant.

          MEMORANDUM AND ORDER

          SANDRA L. TOWNES United States District Judge.

         Defendant Dexter Waiters ("Defendant") was tried before this Court in December 2012 and convicted of all but one of the nine counts on which he was indicted. His conviction became final in October 2016, after the United States Supreme Court denied his petition for a writ of certiorari. See Sebbern v. United States, 137 S.Ct. 280, 196 L.Ed.2d 85 (2016). Defendant now moves 1) to correct certain clerical errors in his judgment of conviction, 2) to "lift" a separation order-allegedly first issued at the request of the United States Probation Department-which prevents Defendant from being housed in the same prison as his co-defendant and 3) for appointment of counsel to assist him with the preparation of a § 2255 motion or, in the alternative, an extension of his time to file that motion. For the reasons stated below, the Rule 36 motion is granted but the other motions are denied.

         BACKGROUND

         In December 2012, Defendant went to trial on an indictment which charged him with nine counts: racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, being a felon in possession of a firearm, possession of body armor after being convicted of an offense that constitutes a crime of violence, conspiracy to distribute cocaine and cocaine base, and two counts of unlawful use of a firearm in furtherance of a crime of violence. On December 21, 2012, the jury found Defendant guilty of all counts except one of the two counts charging unlawful use of a firearm. On August 22, 2014, the Court sentenced him to life imprisonment on each of the three top counts and to various terms of years on the remaining five counts. All of the terms of imprisonment were concurrent, except for the 60-month term of imprisonment imposed for the unlawful use of a firearm.

         Defendant appealed his conviction. The Second Circuit affirmed Defendant's conviction on December 16, 2015. United States v. Sebbern, 641 F.App'x 18 (2d Cir. 2015) (summary order). Defendant then petitioned the United States Supreme Court for a writ of certiorari, which was denied on October 3, 2016. Sebbern, 137 S.Ct. 280, 196 L.Ed.2d 85.

         The Instant Motions

         In the two and one-half years since his conviction, Defendant has filed three additional motions. The first is in the form of an undated letter postmarked July 29, 2015, and received and filed by the Court on August 7, 2015. (Documents 185 & 186). This letter-motion requests that the Court "lift" a separation order which prevents Defendant from being incarcerated in the same facility as his co-defendant, Dontae Sebbern. Defendant states that this order was issued by the Probation Department prior to trial and implies that there is no justification for continuing the order now that both Defendant and his co-defendant have been convicted.

         The second motion is in the form of an undated letter which was received and filed by the Court on February 7, 2017. (Document 189). In that letter, Defendant asserts that the judgment of conviction "erroneously states that [he] was adjudicated guilty on all counts" and "was adjudicated guilty of 924 (c) ii and 924 (c) iii, when in fact the Court['s] oral announcement and sentence reflects 924 (c) i." Letter to Judge Townes from Dexter Waiters, p. 1. Defendant argues that Rule 36 of the Federal Rules of Criminal Procedure expressly permits these clerical errors in the judgment to be corrected at this juncture.

         The third motion is an undated, one-page document which was mailed to the Court Clerk at 500 Pearl Street, New York, New York, on or about January 30, 2017. (Document 190). Although the caption atop that document indicates that Defendant intended to address his motion to the United States Court of Appeals for the Second Circuit, the motion pertains to a prospective motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Since a § 2255 motion must be brought in the trial court in which the movant was convicted, the Court Clerk forwarded the document to this Court.

         This document contains no information regarding what issues Defendant wishes to raise in his § 2255 motion. Rather, it reflects the belief that Defendant is entitled to counsel to assist in the preparation of the motion, stating that Defendant's appellate counsel "left [him] cold with no help pertaining to [his] 2255 ...." Defendant, who represents that he is "computer illiterate" and neither "law savvy" nor "familiar with the law library procedures, " requests that the Court "give [him] counsel and ... the proper team ... to process [his] 2255 ...." Defendant also requests, in the alternative, that he be given an extension of time in which to file his § 2255 motion.

         DISCUSSION

         The Motion to Correct Clerical Errors in the Judgment

         Rule 36 of the Federal Rules of Criminal Procedure provides:

After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in ...

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