King v. U.S. Attorney et al (INMATE3)

Filing 2

ORDER that the court advises King of its intention to recharacterize his pleading as a motion to vacate, set aside or correct sentence pursuant to 28 USC 2255, as further set out; directing that on or before 4/15/2011, King shall advise the court whe ther 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 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, as further set out in order. Signed by Honorable Charles S. Coody on 3/17/11. (djy, )

-CSC King v. U.S. Attorney et al (INMATE1)

Doc. 2

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION BENNY RAY KING, Petitioner, v. U.S. ATTORNEY, et al. Respondent. ) ) ) ) ) ) ) ) )

Civil Action No. 2:11cv186-ID (WO)

ORDER The petitioner, Benny Ray King ("King"), has filed a pro se pleading with this court, styled as a "Petition for Writ of Habeas Corpus," in which he appears to assert claims challenging his 2005 conviction and sentence for bank fraud. The law is settled that 28 U.S.C. § 2255 affords the exclusive remedy for challenging a federal conviction and sentence, unless the remedy is inadequate or ineffective. See Bradshaw v. Story, 86 F.3d 164, 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 inadequate or ineffective merely because an inmate's motion is barred by the applicable one-year period of limitation or by the gatekeeping provision on successive petitions contained in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. Scott, 177 F.3d 1236, 1244 (11 th Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7 th Cir. 1998). Moreover, "[t]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision." In re Vial, 115 F.3d 1192, 1194 n.5 (4 th Cir. 1997) (internal citations omitted).

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The claims King 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 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 (11 th Cir. 1990). Accordingly, this court concludes that King's instant pleading 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 compliance with the requirements of Castro v. United States, 540 U.S. 375, 382-83 (2003), the court hereby advises King of its intention to recharacterize his pleading as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The court cautions King that such recharacterization renders this motion and any subsequent § 2255 motion filed with this court susceptible to each of the procedural limitations imposed upon § 2255 motions. Specifically, King 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.1 In further compliance with the requirements of Castro, supra, it is ORDERED that on or before April 15, 2011, King shall advise this court whether

"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

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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. King is CAUTIONED that if he fails to file a response in compliance with this order, which requires that he advise the court that he wishes to do one of the above, this cause shall proceed as an action under 28 U.S.C. § 2255, with the court considering only those claims presented in his original motion (Doc. No. 1). Done this 17 th day of March, 2011.

/s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

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