MACHADO-CANTILLO v. USA

Filing 3

ENTRY Providing Castro Notice and Directing Further Proceedings - Mr. Machado-Cantillo is entitled to notice of the fact that this case has been opened as a section 2255 action, and notice that any subsequent motion pursuant to § 2255 would be s ubject to restrictions. The petitioner shall have through March 27, 2017, in which to either 1) file a statement asserting that his letter contains all of his claims of ineffective assistance of counsel and that the Court should proceed with the cas e as presented; or 2) file an amended motion to vacate under section 2255, with a complete statement of the claims and grounds on which he could and does challenge his conviction and/or sentence; or 3) withdraw his motion insofar as it could be thoug ht to seek relief authorized by 28 U.S.C. § 2255. The clerk shall include with the petitioner's copy of this Entry a copy of a Pro Se 2255 Motion AO-243 Form and a copy of his letter in Spanish (docket 602) and English (docket 606). Mr. Mac hado-Cantillo shall place the cause number for this case, 4:17-cv-00033-TWP-TAB, and the word "AMENDED" on the front page of his amended section 2255 motion, if he chooses to file it. The clerk shall also update the docket by adding the petitioner's identification number, 15-43924, and facility name to his address on the docket. See Entry for details. Signed by Judge Tanya Walton Pratt on 2/21/2017 (copy mailed to petitioner).(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
ORLIS MACHADO-CANTILLO,

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

No. 4:17-cv-00033-TWP-TAB

Entry Providing Castro Notice and Directing Further Proceedings
I. Background
Petitioner Orlis Machado-Cantillo was convicted of interstate transportation of stolen
property and conspiracy to possess goods stolen from interstate commerce after pleading guilty
to those counts in 4:14-cr-00031-TWP-VTW-6. He was sentenced to 96 months imprisonment in
the United States Bureau of Prisons. An Amended Judgment was entered on October 11, 2016.
On February 14, 2017, Mr. Machado-Cantillo filed a letter written in Spanish. The Court
ordered it docketed and translated by a Federally Certified Spanish Interpreter. The English
version of the letter was filed on February 16, 2017, and it prompted the opening of this action
seeking relief under 28 U.S.C. § 2255.
II. Castro Notice
A.
A Court may grant relief from a federal conviction or sentence pursuant to 28 U.S.C. §
2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” “[A]ny paper asking for the relief provided by § 2255 & 1 is a motion under § 2255,
without regard to its caption or other details.” Ellzey v. United States, 324 F.3d 521, 524 (7th Cir.
2003) (citing cases).
As noted above, the Court has determined that Mr. Machado-Cantillo’s filing of February
14, 2017, attempts to seek relief within the scope of § 2255.
B.
Mr. Machado-Cantillo is entitled to notice of the fact that this case has been opened as a
section 2255 action, and notice that any subsequent motion pursuant to § 2255 would be subject
to restrictions. In essence, Mr. Machado-Cantillo will have one bite at the apple, one opportunity
to file a complete section 2255 motion, if he chooses to do so. Therefore, he must also be
afforded the opportunity to withdraw or amend his motion to include all § 2255 claims which he
believes he has. Castro v. United States, 540 U.S. 375, 383 (2003).
Because of the circumstances just described, it is important that a petitioner seeking relief
pursuant to section 2255 set forth all claims and grounds on which he seeks relief. The failure to
do so jeopardizes the petitioner’s potential opportunity to present a claim which is omitted from
the first such motion. As explained in In Re Davenport, 147 F.3d 605, 610 (7th Cir. 1998), “[t]he
amended section 2255 gives a convicted defendant only one further bite at the apple after his
direct appeal unless he can demonstrate a compelling reason, as defined in the section (newly
discovered evidence of innocence or a new and retroactive rule of constitutional law)” for being
allowed another bite. Id.

C.
The petitioner shall have through March 27, 2017, in which to either 1) file a
statement asserting that his letter contains all of his claims of ineffective assistance of counsel
and that the Court should proceed with the case as presented; or 2) file an amended motion to
vacate under section 2255, with a complete statement of the claims and grounds on which he
could and does challenge his conviction and/or sentence; or 3) withdraw his motion insofar as it
could be thought to seek relief authorized by 28 U.S.C. § 2255.
The clerk shall include with the petitioner’s copy of this Entry a copy of a Pro Se 2255
Motion AO-243 Form and a copy of his letter in Spanish (docket 602) and English (docket
606). Mr. Machado-Cantillo shall place the cause number for this case, 4:17-cv-00033-TWPTAB, and the word “AMENDED” on the front page of his amended section 2255 motion, if he
chooses to file it.
The clerk shall also update the docket by adding the petitioner’s identification number,
15-43924, and facility name to his address on the docket.
IT IS SO ORDERED.

Date:

2/21/2017

Distribution:
ORLIS MACHADO-CANTILLO
15-43924
New River Valley Regional Jail
P.O. Box 1067
Dublin, VA 24084

NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.