Duarte-Ramirez v. USA

Filing 3

ORDER that Movant's Motion for Sentence Relief Under the Federal Prison Bureau Non-Violent Offender Relief Act of 2003 (Doc. 19 in CR 13- 00192-PHXDGC) is denied and that the civil action opened in connection with this Motion (CV 13- 1157-PHX-DGC (BSB)) is dismissed. The Clerk shall enter judgment accordingly. Signed by Judge David G Campbell on 8/15/13. (LSP)

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MD

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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 13-1157-PHX-DGC (BSB)
CR 13-00192-PHX-DGC

Raul Duarte-Ramirez,

ORDER

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Defendant/Movant.

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Movant Raul Duarte-Ramirez, who is confined in the Florence Correctional

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Center in Florence, Arizona, has filed a pro se Motion for Sentence Relief Under the

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Federal Prison Bureau Non-Violent Offender Relief Act of 2003. The Court will deny

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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. 19 in CR 13-00192-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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1157-PHX-DGC (BSB)) is dismissed.

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accordingly.

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The Clerk of Court must enter judgment

Dated this 15th day of August, 2013.

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