Pemberton v. United States of America (INMATE 3)

Filing 4

ORDERED that on or before 7/30/2012, Pemberton 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 1 motion; 2) Amend his motion to assert any additional claims pursuant to 28 USC § 2255 on which he wishes to challenge the convictions and sentence imposed upon him by this court; or 3) Withdraw his motion, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 6/28/2012. Copies furnished as directed.(wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRADLEY H. PEMBERTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 2:12cv384-WHA
(WO)

ORDER
The petitioner, Bradley H. Pemberton, has filed a pro se pleading with this court, selfstyled as a “Motion to Correct Structural Errors and Vacate the Conviction,” in which he
asserts claims challenging the validity of his 2011 convictions and sentence for wire fraud,
in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation of 18 U.S.C. §
1028A(a)(1). (Doc. No. 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 (10th 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).
Pemberton has been tried, convicted, and sentenced. His convictions and sentence
were affirmed on direct appeal. See United States v. Pemberton, No. 11-12731 (11th Cir. Jun.
26, 2012). 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 Pemberton’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 Pemberton of its intention
to recharacterize his pleading (Doc. No. 1) as a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. The court cautions Pemberton 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,
Pemberton 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 30, 2012, Pemberton 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 convictions and sentence imposed upon him by this court;
or
3. Withdraw his motion.
Pemberton 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).
Because this court will not proceed on a 28 U.S.C. § 2255 motion before the directappeal process has concluded, Pemberton shall also advise this court whether he has filed
an application for rehearing regarding the Eleventh Circuit’s decision affirming his

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“A 1-year period of limitation shall apply to a motion under this section.” 28 U.S.C. §
2255(f). 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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convictions and sentence.
In order to assist Pemberton in presenting any claims he wishes to assert in a 28
U.S.C. § 2255 motion, the Clerk of Court is DIRECTED to provide Pemberton with the
form used for filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255.
Done this 28th day of June, 2012.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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