Chipps v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
AUSTIN LEE CHIPPS, SR., 5:22-CV-05077-RAL
Movant,
ORDER DIRECTING SERVICE AND
REQUIRING RESPONSE
vs.
UNITED STATES OF AMERICA,
Respondent.
Movant Austin Lee Chipps, Sr., filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255. Doc. 1. Chipps argues that his conviction should be overturned under
United States v. Davis. 139 S. Ct. 2319(2019) and Borden v. United States. 141 S. Ct. 1817
(2021). Id at 1-3. Under Rule 2(c) ofthe Rules Governing Section 2255 Proceedings, a motion
"must substantially follow either the form appended to [the Rules Governing Section 2255
Proceedings] or a form prescribed by a local district-court rule." Similarly, Local Rule 83.8(A)
allows for a motion not in accordance with the instructions provided on a § 2255 form ifthe
motion "is imderstandable" and "substantially conforms with federal and local requirements[.]"
D.S.D. Civ. LR 83.8(A). Although Chipps did not file his motion on the proper § 2255 form,the
Court finds that Chipps' motion substantially conforms with the requirements.
This Court is to dismiss a motion under § 2255 if it "plainly appears ... that the moving
party is not entitled to relief[.]" Rule 4(b), Rules Governing § 2255 Proceedings. This Court
cannot determine with confidence that it "plainly appears" that Chipps is not entitled to any
relief, although ultimately that may be the case.
Therefore, it is hereby
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ORDERED that the Clerk of Court serve a copy of all pleadings of record and this Order
on Respondent. It is further
ORDERED that Respondent file an answer, and if it so chooses, a motion to dismiss and
memorandum, within thirty days of service ofthe pleadings. It is finally
DATED September 3^^,2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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