Slaton v. United States of America (INMATE 3)
ORDERED that on or before 10/23/2013, Slaton shall advise this court whether she seeks to do one of the following: (1) have her 2 motion construed as a § 2255 motion as filed and proceed before this court pursuant to 28 USC § 2255 on the claims presented in the motion; (2) amend her motion to assert any additional claims pursuant to 28 USC § 2255 on which she wishes to challenge her conviction and sentence; or (3) withdraw her motion, as further set out in order; DIRECTING the Clerk to provide Slaton with the form used for filing a motion to vacate, set aside, or correct sentence pursuant to 28 USC § 2255. Signed by Honorable Judge Susan Russ Walker on 9/23/2013. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
Civil Action No. 2:13cv678-MHT
The Petitioner, Jacqueline Slaton, has filed a pro se pleading with this court, selfstyled as a “Motion to Contest the Applicability of Guidelines Enforcements,” in which she
asserts claims challenging the sentence imposed by this court in October 2012 following her
conviction on charges of fraud and aggravated identity theft. (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 Slaton 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 Slaton’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 Slaton of its intention to
recharacterize her pleading (Doc. No. 2) as a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255.
The court CAUTIONS Slaton 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,
Slaton 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
“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, it is
ORDERED that on or before October 23 2013, Slaton shall advise this court
whether she seeks to do one of the following:
(1) have her 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 her motion to assert any additional claims pursuant to 28 U.S.C. § 2255
on which she wishes to challenge her conviction and sentence; or
(3) withdraw her motion.
Slaton is CAUTIONED that if she fails to file a response in compliance with this
order, which requires that she advise the court that she 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 her original motion (Doc. No. 2).
In order to assist Slaton in presenting any claims she wishes to assert in a 28 U.S.C.
§ 2255 motion, the Clerk of Court is DIRECTED to provide Slaton with the form used for
filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Done this 23rd day of September, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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