Anderson v. Maldonado et al
PRISCS - ORDER re 1 Petition for Writ of Habeas Corpus filed by Francis Anderson, ( Dismissal due by 8/30/2011). Signed by Judge Janet Bond Arterton on 8/2/11. (Corriette, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Petitioner currently is confined in at Northern Correctional
Institution in Somers, Connecticut.
He has filed an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 which is
designed for use by a person in state custody challenging his
Petitioner, however, is challenging a federal
sentence to be served upon completion of his state sentence.
Petitioner states that judgment entered in the federal
criminal case on November 20, 2001.
A review of the docket
indicates, however, that petitioner entered a not guilty plea on
Petitioner subsequently changed his plea and judgment
entered on October 2, 2003.
Petitioner was sentenced to a term
of imprisonment of twelve months to be served concurrent to the
state sentence currently being served followed by three years
On July 24, 2008, petitioner pleaded guilty
to a charge of violation of the terms of his supervised release
and, on August 4, 2008, judgment entered imposing a sentence of
imprisonment for one year and one day to be served consecutive to
the state sentence petitioner currently is serving.
assumes that petitioner is now challenging this 2008 sentence.
See USA v. Anderson, No. 3:01cr265(CFD).
The proper vehicle to challenge the imposition of a federal
conviction and sentence is a motion filed pursuant to 28 U.S.C. §
See Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001).
The court cannot construe this petition as filed pursuant to
The Second Circuit has held that a district court
may recharacterize a petition as a section 2255 motion only where
it would be the second section 2255 motion filed by the
See id. at 148.
A review of the criminal docket
shows that petitioner has not filed a § 2255 motion.
Where a petitioner has not filed a motion to vacate, set
aside or correct sentence pursuant to section 2255, the district
court must permit the petitioner to either: (1) agree to the
recharacterization of his petition as a § 2255 motion; or (2)
withdraw the petition.1
See Adams v. United States, 155 F.3d
The court advises petitioner that section 2255 contains a
one-year limitations period. Petitioner did not appeal his
federal conviction and sentence. Thus, his federal criminal
judgment became final on September 4, 2008, the date for filing a
direct appeal expired. See Moshier v. U.S., 402 F.3d 116, 118
(2d. Cir. 2005) (holding “that, for purposes of § 2255 motions,
an unappealed federal criminal judgment becomes final when the
time for filing a direct appeal expires”). The limitations
period expired on September 4, 2009.
582, 584 (2d Cir. 1998).
On or before August 30, 2011, petitioner shall file a Notice
in which he either: (1) agrees to the recharacterization of his
petition as a § 2255 motion; or (2) withdraws the petition.
Failure to respond to this order will result in the dismissal of
It is so ordered.
Janet Bond Arterton
United States District Judge
Dated at New Haven, Connecticut: August 02, 2011.
The petition is dated June 8, 2011. The court assumes that
the petitioner handed his petition to prison officials for
mailing to the court on that date. Thus, the court deems the
petition for writ of habeas corpus to have been filed in this
court on June 8, 2011. See Dory v. Ryan, 999 F.2d 679, 682 (2d
Cir. 1993) (Second Circuit has held that a pro se prisoner
complaint is deemed filed as of the date the prisoner gives the
complaint to prison officials to be forwarded to the court)
(citing Houston v. Lack, 487 U.S. 266, 270 (1988)). If
petitioner agrees to have the petition recharacterized as a
section 2255 motion, it will not have been timely filed unless
petitioner can show that the limitations period should be
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