Verdugo-Vizcarra v. USA
Filing
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ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and that the civil action opened in connection with this Motion (CV 13- 479-PHX-DGC (BSB)) is dismissed. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 3/27/13. (LAD)
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MDR
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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United States of America,
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Plaintiff,
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vs.
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No. CV 13-479-PHX-DGC (BSB)
CR 12-1494-PHX-DGC
Gonzalo Verdugo-Vizcarra,
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ORDER
Defendant/Movant.
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Movant Gonzalo Verdugo-Vizcarra, who is confined in the Corrections
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Corporation of America's Florence Correctional Center in Florence, Arizona, has filed a
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pro se Motion for Sentence Relief Under the Federal Prison Bureau Non-Violent
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Offender Relief Act of 2003. The Court will deny the Motion.
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This matter has been opened as a motion to vacate sentence under 28 U.S.C.
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§ 2255. However, Movant’s Motion does not refer to § 2255. Nor does he refer to any
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other jurisdictional basis for his Motion. Although the Court may construe a pro se
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motion as a § 2255 motion, it may not do so without first giving certain warnings to the
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movant. In Castro v. United States, 540 U.S. 375, 377 (2003), the Supreme Court held a
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district court may not recharacterize a motion as a defendant’s first § 2255 motion
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without first warning him that the recharacterization will subject subsequent § 2255
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motions to the law’s “second or successive” restrictions and allowing him an opportunity
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to withdraw or to amend the motion. But even if the Court had provided Movant with the
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requisite Castro warning, it would not recharacterize this matter as a motion brought
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under § 2255 because his claim for relief is frivolous.
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In his Motion, Movant seeks relief under a bill (the Federal Bureau of Prisons
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Nonviolent Offender Relief Act of 2003, H.R. 3575, 108th Cong. (2003)) introduced in
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Congress to amend 18 U.S.C. § 3624. That bill was never enacted. Accordingly,
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Movant’s Motion has no arguable basis in fact or in law.
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IT IS ORDERED that Movant’s Motion for Sentence Relief Under the Federal
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Prison Bureau Non-Violent Offender Relief Act of 2003 (Doc. 32 in CR 12-1494-PHX-
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DGC) is denied and that the civil action opened in connection with this Motion (CV 13-
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479-PHX-DGC (BSB)) is dismissed.
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accordingly.
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The Clerk of Court must enter judgment
Dated this 27th day of March, 2013.
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