Green v. United States of America (INMATE3)

Filing 2

ORDER construing Document 1 as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. Section 2255; advising O'Neal of the court's intention to re-characterize his pleading; directing O'Neal to advise the court on o r before March 22, 2010 as to whether he seeks to do one of the following: 1. Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presentedin his 1 motion; 2. Amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255 on which he wishes to challenge the convictions and sentences imposed upon him by this court; or 3. Withdraw his motion. Signed by Honorable Charles S. Coody on 2/26/2010. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION Q U IN C Y O'NEAL GREEN, P e titio n e r, v. U N IT E D STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:10cv149-WKW (WO)

ORDER O n or around February 16, 2010, the pro se petitioner, Quincy O'Neal Green (" G ree n "), filed what he purports to be a "Writ of Error Audita Querela[,] Title 28 U.S.C. § 1651," which contains a heading stating "This Is Not a Motion Pursuant to Title 28 U.S.C. § 2255." (Doc. No. 1.) In this pleading, Green alleges, among other things, that his sentence f o r uttering counterfeit currency was imposed in violation of United States v. Booker, 543 U .S . 220 (2005), and that consequently he is entitled to be resentenced. In addition, Green s u g g e s ts that the sentence imposed by the district court violated the terms of the plea a g re e m e n t in his case. A writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255. See United States v. Holt, 417 F.3d 1172, 1175 (11 th Cir. 2005). The law is well s e ttle d that 28 U.S.C. § 2255 affords the exclusive remedy for challenging a conviction and s e n te n c e, unless the remedy is inadequate or ineffective. See Bradshaw v. Story, 86 F.3d 1 6 4 , 166 (10 th Cir. 1996); Broussard v. Lippman, 643 F.2d 1131, 1134 (5 th Cir. 1981); Lane

v . Hanberry, 601 F.2d 805 (5 th Cir. 1979). The remedy afforded by § 2255 is not deemed in a d e q u a te or ineffective merely because an inmate's motion is barred by the applicable o n e -ye a r period of limitation or by the gatekeeping provision on successive petitions c o n ta in e d in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. Scott, 177 F.3d 1236, 1 2 4 4 (11 th Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7 th Cir. 1998). Moreover, "[t]he re m e d y afforded by § 2255 is not rendered inadequate or ineffective merely because an in d iv id u a l has been unable to obtain relief under that provision." In re Vial, 115 F.3d 1192, 1 1 9 4 n.5 (4 th Cir. 1997) (internal citations omitted). C o n s e q u e n tly, notwithstanding O'Neal's statement that his pleading "Is Not a Motion P u r s u a n t to Title 28 U.S.C. § 2255," the claims O'Neal seeks to advance may properly be p re se n te d only in a 28 U.S.C. § 2255 motion. "Federal courts have long recognized that they h a v e an obligation to look behind the label of a motion filed by a pro se inmate and determine w h e th e r the motion is, in effect, cognizable under a different remedial statutory framework." U n ite d States v. Jordan, 915 F.2d 622, 624-25 (11 th Cir. 1990). Accordingly, this court c o n c lu d e s that O'Neal's instant pleading should be construed as a motion to vacate, set a s id e , or correct 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 O'Neal of its intention to r e ch a r a c te r iz e 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 O'Neal that such recharacterization

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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, O'Neal is c a u tio n e d that the instant motion and any subsequent § 2255 motion shall be subject to the o n e -ye a r period of limitation and the successive petition bar applicable to post-conviction m o t io n s .1 In further compliance with the requirements of Castro, supra, it is O R D E R E D that on or before March 22, 2010, O'Neal 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 convictions and sentences imposed upon him by this court; or 3 . Withdraw his motion. O 'N e a l is CAUTIONED that if he fails to file a response in compliance with this o rd e r, which requires that he advise the court that he wishes to do one of the above, this c a u se shall proceed as an action under 28 U.S.C. § 2255, with the court considering only

"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). 3

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tho se claims presented in his original motion (Doc. No. 1).2 D o n e this 26 th day of February, 2010.

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

O'Neal 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. 4

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