Green v. United States of America

Filing 2

ORDERED that because Green's earlier "Petition" qualified for but did not receive a Castro warning, his current 2255 cannot, contrary to his belief, be deemed successive. The Government shall thus respond on the merits to this, legally his first 2255 motion, within thirty days of the date this Order is served. Signed by Magistrate Judge G. R. Smith on 6/21/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JERRY ORENTHAL GREEN,
Movant,
v.

Case No. CV416-153
CR405-139

UNITED STATES OF AMERICA,
Respondent.

ORDER
Citing Johnson v. United States , ___ U.S. ___, 135 S. Ct. 2551
(2015) and Welch v. United States , ___ U.S. ___, 136 S. Ct. 1257 (2016),
Jerry Orenthal Green moves this Court for 28 U.S.C. § 2255 relief.
CR405-139 doc. 62. In an accompanying brief he says he “brings this
successive petition for habeas corpus under [§] 2255(f)(3) in light of
[Johnson]. . . .” Doc. 62-1 at 1.
His § 2255 motion is not successive.
The record shows why. Following his 2006 jury-conviction for
violating 18 U.S.C. § 922, the Court sentenced Green under 18 U.S.C. §
924(e) (armed career criminal) to 293 months in 2006. Doc. 45, appeal

denied , doc. 53. In 2010, he filed a “Petition To redress the court for

violations of Fifth Amendment Right to Due Process of Law.” Doc. 55.
That “Petition” alleged, inter alia, “that the sentence which was imposed
under the enhancement statute [§ 924(e)] made the statute
unconstitutional.” Doc. 55. It thus was a 28 U.S.C. § 2255 motion. 1
Cagily, Green never called it that. But since substance governs
over nomenclature, see supra n. 1, the Court was obliged to characterize
it for what it was (a § 2255 motion)2 and apply Castro v. United States ,
540 U.S. 375, 382-83 (2003) (a court that wishes to recharacterize a pro

se litigant's pleading as a first 28 U.S.C. § 2255 motion must (1) notify
him of the court's intent, (2) warn him that recharacterization means
that a subsequent § 2255 motion will be subject to restrictions on
“second or successive” motions, and (3) give him an opportunity to
1

As another court has explained:
“A party's labeling of a motion is not binding on the Court, which may discard
an inappropriate label to render a decision based on the motion's substance.”
Soto-Herrera v. United States , 2013 WL 1788499, *2 (S.D. Ala. Apr. 26, 2013)
(citing Smith v. United States Parole Comm'n , 721 F.2d 346, 348 (11th
Cir.1983) (per curiam)). Despite the title, “a motion that collaterally attacks a
prisoner's sentence as being unconstitutional is a motion to vacate under §
2255.” Walker v. United States , 367 F. App’x 67, 68 (11th Cir. 2010)].

Lacey v. United States , 2016 WL 3093948 at *3 (S.D. Ala. June 1, 2016).
2

“Federal courts have ‘an obligation to look behind the label of a [pleading] filed by
a pro se inmate and determine whether [it] is, in effect, cognizable under a different
remedial statutory framework.” See Gooden v. United States , 627 F.3d 846, 847 (11th
Cir. 2010) (quotation marks and citation omitted).” Cruitt v. Alabama , 2016 WL
1382405 at * 1 (11th Cir. Apr. 7, 2016).

withdraw the motion or to amend it to include all § 2255 claims); Davis v.

Olens , 2016 WL 3034069 at * 2 (S.D. Ga. May 26, 2016).
That was not done here. Nor was Green’s “Petition” routed
through the usual civil-case opening and Magistrate Judge review
channel per 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Instead, the district
judge directly addressed Green’s motion and ruled (in its entirety): “The
Court has considered the motion of the defendant requesting the Court
to correct his sentence based upon his assertion that the sentence is
unconstitutional. The motion is DENIED.” Doc. 56. From that
October 12, 2010 ruling Green appealed, doc. 57, but the Eleventh
Circuit dismissed it on abandonment grounds. Doc. 61. A half-decade
later, Green filed the instant motion.
“If the [district] court fails to [issue a Castro warning], the [earlier]
motion cannot be considered to have become a § 2255 motion for
purposes of applying to later motions the law's ‘second or successive’
restrictions. The requirements of Castro apply even when the district
court denies a recharacterized section 2255 motion as untimely. Gooden

v. United States , 627 F.3d 846, 849 (11th Cir. 2010).” Williams v. United
States , 464 F. App’x 834, 834 (11th Cir. 2012).

Because Green’s earlier “Petition” qualified for but did not receive
a Castro warning, his current § 2255 cannot, contrary to his belief, be
deemed successive. The Government shall thus respond on the merits to
this, legally his first § 2255 motion, within 30 days of the date this Order
is served.

SO ORDERED, this 21st day of June, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA