Rivera-Aispuro v. USA
Filing
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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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