Verdugo-Vizcarra v. USA

Filing 4

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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1 2 MDR WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, 10 Plaintiff, 11 vs. 12 No. CV 13-479-PHX-DGC (BSB) CR 12-1494-PHX-DGC Gonzalo Verdugo-Vizcarra, 13 ORDER Defendant/Movant. 14 15 Movant Gonzalo Verdugo-Vizcarra, who is confined in the Corrections 16 Corporation of America's Florence Correctional Center in Florence, Arizona, has filed a 17 pro se Motion for Sentence Relief Under the Federal Prison Bureau Non-Violent 18 Offender Relief Act of 2003. The Court will deny the Motion. 19 This matter has been opened as a motion to vacate sentence under 28 U.S.C. 20 § 2255. However, Movant’s Motion does not refer to § 2255. Nor does he refer to any 21 other jurisdictional basis for his Motion. Although the Court may construe a pro se 22 motion as a § 2255 motion, it may not do so without first giving certain warnings to the 23 movant. In Castro v. United States, 540 U.S. 375, 377 (2003), the Supreme Court held a 24 district court may not recharacterize a motion as a defendant’s first § 2255 motion 25 without first warning him that the recharacterization will subject subsequent § 2255 26 motions to the law’s “second or successive” restrictions and allowing him an opportunity 27 to withdraw or to amend the motion. But even if the Court had provided Movant with the 28 1 requisite Castro warning, it would not recharacterize this matter as a motion brought 2 under § 2255 because his claim for relief is frivolous. 3 In his Motion, Movant seeks relief under a bill (the Federal Bureau of Prisons 4 Nonviolent Offender Relief Act of 2003, H.R. 3575, 108th Cong. (2003)) introduced in 5 Congress to amend 18 U.S.C. § 3624. That bill was never enacted. Accordingly, 6 Movant’s Motion has no arguable basis in fact or in law. 7 IT IS ORDERED that Movant’s Motion for Sentence Relief Under the Federal 8 Prison Bureau Non-Violent Offender Relief Act of 2003 (Doc. 32 in CR 12-1494-PHX- 9 DGC) is denied and that the civil action opened in connection with this Motion (CV 13- 10 479-PHX-DGC (BSB)) is dismissed. 11 accordingly. 12 The Clerk of Court must enter judgment Dated this 27th day of March, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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