Rivera-Aispuro v. USA

Filing 3

ORDER that Movant's 1 "Motion for Early Release Pursuant to Title 18USC 3624" (Doc. 35 in CR 13-0149-PHX-DGC (JFM)) is denied and that the civil action opened in connection with this Motion (CV 14-0734-PHX-DGC (BSB)) is dismissed. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 5/7/2014. (ALS)

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ASH

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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 14-0734-PHX-DGC (BSB)
CR 13-0149-PHX-DGC (JFM)

Fernando Rivera-Aispuro,

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ORDER

Defendant/Movant.

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Movant Fernando Rivera-Aispuro, who is confined in the Giles W. Dalby

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Correctional Facility in Post, Texas, has filed a pro se “Motion for Early Release

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Pursuant to Title 18 USC 3624.” 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 except to say that his

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Motion is “not a civil post-conviction relief pleading.” Nor does he refer to any other

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jurisdictional basis for his Motion. Although the Court may construe a pro se motion as a

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§ 2255 motion, it may not do so without first giving certain warnings to the movant. In

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Castro v. United States, 540 U.S. 375, 377 (2003), the Supreme Court held that a district

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court may not recharacterize a motion as a defendant’s first § 2255 motion without first

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warning him that the recharacterization will subject subsequent § 2255 motions to the

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law’s “second or successive” restrictions, and allowing him an opportunity to withdraw

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or to amend the motion. But even if the Court would provide Movant with the requisite

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Castro warning, it would not recharacterize this matter as a motion brought under § 2255

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because his claim for relief is frivolous.

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In his Motion, Movant seeks relief under a bill known as the Federal Bureau of

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Prisons Nonviolent Offender Relief Act of 2013, H.R. 62, 113th Cong. (2013-2014),

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which was introduced in Congress to amend 18 U.S.C. § 3624. However, that bill has

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not yet been enacted into law. Accordingly, Movant’s Motion has no arguable basis in

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fact or in law.

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IT IS ORDERED that Movant’s “Motion for Early Release Pursuant to Title 18

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USC 3624” (Doc. 35 in CR 13-0149-PHX-DGC (JFM)) is denied and that the civil

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action opened in connection with this Motion (CV 14-0734-PHX-DGC (BSB)) is

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dismissed. The Clerk of Court must enter judgment accordingly.

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Dated this 7th day of May, 2014.

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