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