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)

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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 2 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 2 1 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 4

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