Emojevwe v. United States of America (INMATE 3)

Filing 2

ORDERED re 1 Motion to Vacate that on or before May 10, 2010, Emojevwe shall advise this court whether he seeks to do one of the following: (1) Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presented in his motion; (2) Amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255 on which he wishes to challenge the conviction and sentence imposed upon him by this court; or (3) Withdraw his motion. Emojevwe is CAUTIONED that if he fails to file a response in compliance with this order, which requires that he advise the court that he wishes to do one of the above,this cause shall proceed as an action under 28 U.S.C. § 2255, with the court considering only those claims presented in his original motion. Signed by Honorable Charles S. Coody on 4/19/2010. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION R O B E R T OVUORYE EMOJEVWE, P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 1:10cv317-ID (WO)

ORDER O n or around April 7, 2010, the pro se Petitioner, Robert Ovuorye Emojevwe (" E m o je v w e " ), filed a pleading styled as a "Motion to Vacate Pursuant to Criminal P r o c e d u re Law Section 440.10 and/or Section 440.30." (Doc. No. 1.) In this pleading, E m o j e v w e challenge his 1999 convictions and sentence for trafficking in counterfeit goods. T h e law is well settled that 28 U.S.C. § 2255 affords the exclusive remedy for challenging a conviction and sentence, unless the remedy is inadequate or ineffective. See Bradshaw v. S t o r y, 86 F.3d 164, 166 (10 th Cir. 1996); Broussard v. Lippman, 643 F.2d 1131, 1134 (5 th Cir. 1 9 8 1 ); Lane v. Hanberry, 601 F.2d 805 (5 th Cir. 1979). The remedy afforded by § 2255 is n o t deemed inadequate or ineffective merely because an inmate's motion is barred by the a p p lic a b le one-year period of limitation or by the gatekeeping provision on successive p e titio n s contained in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. Scott, 177 F.3d 1 2 3 6 , 1244 (11 th Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7 th Cir. 1998). Moreover, " [ t] h e remedy afforded by § 2255 is not rendered inadequate or ineffective merely because a n individual has been unable to obtain relief under that provision." In re Vial, 115 F.3d

1 1 9 2 , 1194 n.5 (4 th Cir. 1997) (internal citations omitted). T h e claims Emojevwe seeks to advance may properly be presented only in a 28 U.S.C. § 2255 motion. "Federal courts have long recognized that they have an obligation to look b e h in d the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework." United States v. J o r d a n , 915 F.2d 622, 624-25 (11 th Cir. 1990). Accordingly, this court concludes that E m o je v w e 's instant pleading should be construed as a motion to vacate, set aside, or c o r re c t sentence pursuant to 28 U.S.C. § 2255. In light of the foregoing, and in compliance with the requirements of Castro v. United S ta te s, 540 U.S. 375, 382-83 (2003), the court hereby advises Emojevwe of its intention to recharacterize his pleading as a motion to vacate, set aside, or correct sentence p u r s u a n t to 28 U.S.C. § 2255. The court cautions Emojevwe that such recharacterization re n d e rs this motion and any subsequent § 2255 motion filed with this court susceptible to e a c h of the procedural limitations imposed upon § 2255 motions. Specifically, Emojevwe i s cautioned that the instant motion and any subsequent § 2255 motion shall be subject to th e one-year period of limitation and the successive petition bar applicable to post-conviction m o t io n s .1

"A 1-year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255 ¶6. Further, Title 28 U.S.C. § 2244(b)(3)(A) requires that "[b]efore a second or successive [28 U.S.C. § 2255 motion] ... is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). 2

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In further compliance with the requirements of Castro, supra, it is O R D E R E D that on or before May 10, 2010, Emojevwe shall advise this court w h e th e r he seeks to do one of the following: 1 . Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presented in his motion (Doc. No. 1); 2 . Amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255 on w h ich he wishes to challenge the conviction and sentence imposed upon him by this court; or 3 . Withdraw his motion. E m o jev w e is CAUTIONED that if he fails to file a response in compliance with th is order, which requires that he advise the court that he wishes to do one of the above, th is cause shall proceed as an action under 28 U.S.C. § 2255, with the court considering o n ly those claims presented in his original motion (Doc. No. 1).2 D o n e this 19 th day of April, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

Emojevwe is advised that the Supreme Court in Castro did not hold that a district court is prevented from recharacterizing a pro se petitioner's pleading as § 2255 motion without the petitioner's consent, only that it must first provide warnings of the impact of recharacterization and an opportunity to withdraw or amend the motion. 3

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