Rivera-Aispuro v. USA
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
No. CV 14-0734-PHX-DGC (BSB)
CR 13-0149-PHX-DGC (JFM)
Movant Fernando Rivera-Aispuro, who is confined in the Giles W. Dalby
Correctional Facility in Post, Texas, has filed a pro se “Motion for Early Release
Pursuant to Title 18 USC 3624.” 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 except to say that his
Motion is “not a civil post-conviction relief pleading.” 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 that 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 would provide 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 known as the Federal Bureau of
Prisons Nonviolent Offender Relief Act of 2013, H.R. 62, 113th Cong. (2013-2014),
which was introduced in Congress to amend 18 U.S.C. § 3624. However, that bill has
not yet been enacted into law. Accordingly, Movant’s Motion has no arguable basis in
fact or in law.
IT IS ORDERED that Movant’s “Motion for Early Release Pursuant to Title 18
USC 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.
Dated this 7th day of May, 2014.
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