Darby v. United States of America(INMATE3)

Filing 3

ORDER: This court concludes that the the 1 Petition for Writ of Habeas Corpus filed by Marvin Darby should be construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. ORDERED that on or before 2/12/2009, the petit ioner shall advise this court whether he seeks to: 1. Proceed before this court under 28 U.S.C. 2255 on the claims presented in the pleading (Doc. No. 1 ) filed on 1/22/2009; 2. Amend the motion to assert any additional claims under 28 U.S.C. 2255 on which he wishes to challenge the convictions and sentence imposed upon him by this court; or 3. Dismiss the motion. Signed by Honorable Susan Russ Walker on 1/23/2009. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION MARVIN DARBY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) )

Civil Action No. 2:09cv52-WHA (WO)

ORDER On January 22, 2009, the petitioner, Marvin Darby, filed a pleading (Doc. No. 1) wherein he challenges the validity of the conviction and sentence entered against him by this court for unlawful transport of firearms.1 A review of the petitioner's allegations, to the extent they are understood by this court, indicates that he seeks relief that is appropriate only under the remedy provided by 28 U.S.C. § 2255. See Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). "Federal courts have long recognized that they have an obligation to look behind 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. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Accordingly, this court concludes that the

Petitioner filed his pleading on the form used for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. However, he does not challenge a state conviction or sentence, but rather appears to challenge only the conviction and sentence entered against him by this court.

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petitioner's pleading (Doc. No. 1) should be construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In light of the foregoing, and in accordance with Castro v. United States, 540 U.S. 375 (2003), the court hereby advises the petitioner of its intention to re-characterize his pleading as a § 2255 motion. The court cautions the petitioner that such re-

characterization will render this motion and any subsequent § 2255 motion filed with this court susceptible to each of the procedural limitations imposed upon § 2255 motions. Specifically, the petitioner is cautioned that the instant motion and any subsequent § 2255 motion shall be subject to the one-year period of limitation and the successive petition bar applicable to post-conviction motions.2 It is further ORDERED that on or before February 12, 2009, the petitioner shall advise this court whether he seeks to: 1. Proceed before this court under 28 U.S.C. § 2255 on the claims presented in the pleading (Doc. No. 1) filed on January 22, 2009; 2. Amend the motion to assert any additional claims under 28 U.S.C. § 2255 on which he wishes to challenge the convictions and sentence imposed upon him by this court;

"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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or 3. Dismiss the motion. The petitioner is advised that if he fails to file a response in compliance with this order, this cause will proceed as an action under 28 U.S.C. § 2255 with the court considering only those claims presented in the motion filed on January 22, 2009. Done this 23rd day of January, 2009.

/s/Susan Russ Walker SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE

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