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, )

Download PDF
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 2 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 1 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 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?