Rainer v. United States of America (INMATE 3)

Filing 3

ORDERED that on or before 7/6/2011, Rainer shall advise this court whether he seeks to do one of the following: 1) Proceed before this court pursuant to 28 USC § 2255 on those claims presented in his 2 Motion; 2) Amend his motion to assert any additional claims pursuant to 28 USC § 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 Judge Susan Russ Walker on 6/6/2011. Copy mailed to petitioner with blank copy of 2255 form. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LORENZO RAINER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 2:11cv414-MEF
(WO)

ORDER
The petitioner, Lorenzo Rainer (“Rainer”), has filed a pro se pleading with this court,
styled as a “ Motion to Dismiss an Indictment,” in which he asserts claims challenging the
validity of his 2009 conviction and sentence for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). 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 (5th Cir. 1981); Lane v. Hanberry, 601 F.2d 805
(5th 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 (11th Cir. 1999); In re Davenport,
147 F.3d 605, 608 (7th 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 (4th Cir. 1997) (internal
citations omitted).
Rainer has been tried, convicted, and sentenced. His conviction and sentence were
affirmed on direct appeal. See United States v. Rainer, 616 F.3d 1212 (11 th Cir. Aug. 31,
2010). The claims he now seeks to advance may properly be presented at this time 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 (11th Cir. 1990). Accordingly, this court
concludes that Rainer’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 Rainer of its intention to
recharacterize his pleading (Doc. No. 2) as a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255.

The court cautions Rainer 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,
Rainer 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

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post-conviction motions.1
In further compliance with the requirements of Castro, supra, it is
ORDERED that on or before July 6, 2011, Rainer 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. 2);
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.
Rainer 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. 2).

In order to assist Rainer in presenting any claims he wishes to assert in a 28 U.S.C.
§ 2255 motion, the Clerk of Court is DIRECTED to provide Rainer with the form used for
filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

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“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).
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Done this 6th day of June, 2011.

/s/Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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