Pegues v. Warden et al (INMATE 3)

Filing 2

ORDER re 1 Petition for Writ of Habeas Corpus. This court concludes that Pegues's instant pleading 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 4/14/2010 , Pegues 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 (Doc. No. 1 ); 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. Signed by Honorable Wallace Capel, Jr. on 3/24/2010. (dmn)

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 D E M E T R IO U S TERRELL PEGUES, 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. 2:10cv212-WHA (WO)

ORDER O n or around February 23, 2010, the pro se petitioner, Demetrious Terrell Pegues ( " P e g u e s " ), filed a pleading styled as "Petitioner's Petition for Writ of Habeas Corpus P u r s u a n t to the Original Habeas Corpus as Presented in the Constitution and/or 28 USC § 2241 and/or 28 USC § 2255 and Challenge to Jurisdiction and Request to Dismiss In d ic tm e n t and Conviction Within the next 3 Days, as this Is an Extraordinary Writ, or A lte rn a tiv e ly , to Show Cause Why." (Doc. No. 1.) In this pleading, Pegues appears to c h a llen g e his 2008 conviction and sentence for conspiracy to possess with intent to distribute c o n tro lle d substances. The law is well settled that 28 U.S.C. § 2255 affords the exclusive remedy for c h a lle n g in g a conviction and sentence, unless the remedy is inadequate or ineffective. See B r a d s h a w v. Story, 86 F.3d 164, 166 (10 th Cir. 1996); Broussard v. Lippman, 643 F.2d 1131, 1 1 3 4 (5 th Cir. 1981); Lane v. Hanberry, 601 F.2d 805 (5 th Cir. 1979). The remedy afforded b y § 2255 is not deemed inadequate or ineffective merely because an inmate's motion is

b a rre d by the applicable one-year period of limitation or by the gatekeeping provision on s u c c e s s iv e petitions contained in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. S c o tt, 177 F.3d 1236, 1244 (11 th Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7 th Cir. 1 9 9 8 ). Moreover, "[t]he remedy afforded by § 2255 is not rendered inadequate or ineffective m e re ly because an individual has been unable to obtain relief under that provision." In re V ia l, 115 F.3d 1192, 1194 n.5 (4 th Cir. 1997) (internal citations omitted). T h e claims Pegues 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, i n 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 P e g u e s'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 Pegues 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 Pegues 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, Pegues is c a u tio n e d that the instant motion and any subsequent § 2255 motion shall be subject to the

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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 April 14, 2010, Pegues 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. P e g u e s 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 tho se claims presented in his original motion (Doc. No. 1).2

"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). Pegues 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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D o n e this 24 th day of March, 2010.

/s/Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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