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)

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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. 1 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 2 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 3

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