Sullivan v. Hendershot

Filing 6

ORDER CONSTRUING GROUND ONE OF PETITION AS A 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY; AND ORDER TO SHOW CAUSE. Signed by JUDGE LESLIE E. KOBAYASHI on September 10, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH W. SULLIVAN,

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Plaintiff,
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vs.
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DENNIS HENDERSHOT, Acting
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Warden,
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Defendant.
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_____________________________ )

CIVIL NO. 12-00204 LEK-BMK

ORDER CONSTRUING GROUND ONE OF PETITION AS A
28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT A
SENTENCE BY A PERSON IN FEDERAL CUSTODY; AND ORDER TO SHOW CAUSE
On April 18, 2012, pro se Petitioner Joseph W. Sullivan
(“Petitioner”) filed his Petition under 28 U.S.C. § 2241 for a
Writ of Habeas Corpus (“Petition”).

The Petition seeks habeas

relief on two grounds: the district court erred by imposing a
two-level adjustment for obstruction of justice in United States
v. Sullivan, CR 10-00680 LEK, based on conduct for which
Petitioner was convicted in United States v. Sullivan, CR 1100604 LEK (“Ground One”); and Petitioner is entitled to
presentence time credit pursuant to 18 U.S.C. § 3585(b) for his
seven-month home detention because the Government argued, in
conjunction with the imposition of the obstruction of justice
adjustment, that Petitioner’s home detention constituted
“custody” (“Ground Two”).

I.

Construing Ground One as a 28 U.S.C. § 2255 Motion
On July 13, 2012, this Court issued an Order to Show

Cause (“7/13/12 OSC”), stating that this Court was inclined to:
1) conclude that Petitioner properly raised Ground Two as a
§ 2241 petition; and 2) recharacterize Ground One as a motion to
vacate, set aside, or correct a sentence by a person in federal
custody, pursuant to 28 U.S.C. § 2255.

This Court therefore

warned Petitioner that, if the Court recharacterizes Ground One
as a § 2255 motion, any subsequent § 2255 motion Petitioner files
will be subject to the restrictions on “second or successive”
motions,1 and this Court gave Petitioner the opportunity to
either withdraw Ground One or to file a § 2255 motion which
contains all of the § 2255 claims that Petitioner believes he
has.

This Court gave Petitioner until August 13, 2012 to respond

to the 7/13/12 OSC.

1

This Court cautioned Petitioner that, if he

Section 2255(h) states:
A second or successive motion must be certified as
provided in section 2244 by a panel of the
appropriate court of appeals to contain-(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
2

failed to respond to the 7/13/12 OSC, this Court would proceed
upon the Petition filed on April 18, 2012 and would construe
Ground One as a § 2255 motion.
Petitioner did not file a response to the 7/13/12 OSC.
This Court therefore CONSTRUES Ground One as a motion to vacate,
set aside, or correct a sentence by a person in federal custody
under § 2255.

See Castro v. United States, 540 U.S. 375, 381-82

(2003) (recognizing that federal courts will sometimes
recharacterize a pro se litigant’s motion “to create a better
correspondence between the substance of a pro se motion’s claim
and its underlying legal basis” (emphasis and citations
omitted)).
II.

Order to Show Cause
Having so construed the Petition, it does not appear

plainly from the face of the Petition that Petitioner is not
entitled to relief, and it further appears that the Petition is
in compliance with the rules governing the form of § 2241
petitions and § 2255 motions.

This Court therefore ORDERS,

pursuant to Rule 5 of the Rules Governing Section 2254 Cases in
the United States District Courts (“§ 2254 Rules”)2 and Rule 5 of

2

The Rules Governing Section 2254 Cases also apply to
§ 2241 petitions. See Tanner v. MacDonald, Civ. No. 11–00255
SOM/RLP, 2011 WL 1598838, at *1 n.2 (D. Hawai`i Apr. 27, 2011)
(citing Castillo v. Pratt, 162 F. Supp. 2d 575, 577 (N.D. Tex.
2001) (“The Supreme Court intended the 2254 Rules to apply to
petitions filed under § 2241; United States v. Recinos–Gallegos,
(continued...)
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the Rules Governing Section 2255 Proceedings for the United
States District Courts (“§ 2255 Rules”), that Defendant Dennis
Hendershot, Acting Warden (“Defendant”), file an answer to Ground
One of the Petition and an answer to Ground Two of the Petition
on or before October 22, 2012.

Defendant is ORDERED to attach

all relevant transcript portions, briefs on appeal or in postconviction proceedings, opinions, or dispositive orders relating
to Petitioner’s conviction or sentence to the answer as required
by Rule 5 of the § 2254 Rules and Rule 5 of the § 2255 Rules.
Petitioner may file a reply to each answer by no later than
December 3, 2012.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 10, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOSEPH W. SULLIVAN V. DENNIS HENDERSHOT; CIVIL 12-00204 LEK-BMK;
ORDER CONSTRUING GROUND ONE OF PETITION AS A 28 U.S.C. § 2255
MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN
FEDERAL CUSTODY; AND ORDER TO SHOW CAUSE
2

(...continued)
151 F. Supp. 2d 659 (D. Md. 2001) (dismissing petition construed
as falling under § 2241 pursuant to Rule 4). See also Rule 1(b)
of the 2254 Rules”); Ukawabutu v. Morton, 997 F. Supp. 605, 608
n.2 (D.N.J. 1998) (“I refer to these rules [i.e., Rules Governing
Section 2254 Cases] as the ‘Habeas Corpus Rules’ because they
apply to petitions filed pursuant to [§ 2241] as well as
[§ 2254.]”) (alterations in Tanner)).
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