Smith v. United States of America (INMATE 3)
ORDER that on or before February 4, 2013, Smith shall advise this court whether he seeks to do one of the following: Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presented in his motion 1 ; Amend his motion as further set out; Withdraw his motion; the Clerk of Court is DIRECTED to provide Smith with the form used for filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Signed by Honorable Judge Susan Russ Walker on 1/4/2013. (jg, ) form mailed as directed in order.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MARCUS RASHAWN SMITH,
UNITED STATES OF AMERICA,
Civil Action No. 2:12cv1097-WKW
The petitioner, Marcus Rashawn Smith, has filed a pro se pleading with this court,
self-styled as a “Petition for Habeas Corpus,” in which he asserts claims challenging the
validity of his 2008 convictions for bank robbery and federal firearms offenses. (Doc. No.
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).
The claims Smith seeks to advance at this time 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 (11th Cir. 1990). Accordingly, this court concludes
that Smith’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 Smith 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 Smith 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,
Smith 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
“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.
In further compliance with the requirements of Castro, supra, it is
ORDERED that on or before February 4, 2013, Smith 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;
3. Withdraw his motion.
Smith is CAUTIONED that if he fails to file a response in compliance with this
order, 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).
In order to assist Smith in presenting any claims he wishes to assert in a 28 U.S.C.
§ 2255 motion, the Clerk of Court is DIRECTED to provide Smith with the form used for
filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Done this 4th day of January, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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