Jackson v. United States of America (INMATE 3)

Filing 3

ORDER of the court advising Jackson of its intention to recharacterize his 2 pleading as a motion to vacate, set aside, or correct sentence pursuant to 28 USC 2255; directing that on or before 9/27/2013 Jackson shall advise this court whether he s eeks to do one of the following: (1) have his 2 motion construed as a 2255 motion as filed and proceed before this court pursuant to 28 U.S.C. 2255 on the claims presented in the motion; (2) amend his motion to assert any additional claims purs uant to 28 U.S.C. 2255 on which he wishes to challenge his conviction and sentence; or (3) withdraw his motion,as further set out in order; directing the clerk to provide Jackson 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 8/28/13. Mailed with 2255 form to plaintiff, as directed.(djy, )

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

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Civil Action No. 2:13cv596-MHT
(WO)

ORDER
The petitioner, Erskine Jackson, has filed a pro se pleading with this court, self-styled
as a “Motion for Nunc Pro Tunc,” in which he asserts claims apparently challenging his 2009
convictions and sentence on federal controlled substance and firearm charges. (Doc. No. 2.)
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 Jackson 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 Jackson’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 Jackson 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 Jackson that such
recharacterization renders this motion and any subsequent § 2255 motion filed with this court
subject to each of the procedural limitations imposed upon § 2255 motions. Specifically,
Jackson is cautioned that the instant motion and any subsequent § 2255 motion will 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, it is

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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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ORDERED that on or before September 27, 2013, Jackson shall advise this court
whether he seeks to do one of the following:
(1) have his motion (Doc. No. 2) construed as a § 2255 motion as filed and proceed
before this court pursuant to 28 U.S.C. § 2255 on the claims presented in the motion;
(2) amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255
on which he wishes to challenge his conviction and sentence; or
(3) withdraw his motion.
Jackson 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 Jackson in presenting any claims he wishes to assert in a 28 U.S.C.
§ 2255 motion, the Clerk of Court is DIRECTED to provide Jackson 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 August, 2013.

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

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