Delgado-Montoya v. USA

Filing 1

ORDER by District Judge Kenneth J. Gonzales granting Defendant Roman Enrique Delgado-Montoya leave to amend or withdraw his Motion Under 8 USC § 1326 110 . Due on or before 12/12/2017. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

No. CR 15-00125 KG/GJF
No.CV 17-01103 KG

ROMAN ENRIQUE DELGADO-MONTOYA,
Defendant/Movant.
ORDER
THIS MATTER is before the Court on the pro se Motion Under 8 USC § 1326 filed by
Defendant, Roman Enrique Delgado-Montoya, on November 7, 2017. (Doc. 110). Defendant’s
Motion Under 8 USC § 1326 asks to have Delgado-Montoya’s sentence “remanded for
correction” and to “’vacate, set aside, or correct’ his sentence and/or conviction.” (Doc. 110 at 8,
12). However, Defendant may only challenge his conviction and sentence by a motion under 28
U.S.C. § 2255. See 28 U.S.C. § 2255(a) and (e); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996) (“The exclusive remedy for testing the validity of a judgment and sentence, unless it is
inadequate or ineffective, is that provided for in 28 U.S.C. § 2255”).
Therefore, the Court intends to recharacterize Defendant Delgado-Montoya’s Motion
Under 8 USC § 1326 as a first 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence.
Pursuant to Castro v. United States, 540 U.S. 375 (2003), when
a court recharacterizes a pro se litigant’s motion as a first § 2255
motion . . .the district court must notify the pro se litigant that it
intends to recharacterize the pleading, warn the litigant that this
recharacterization means that any subsequent § 2255 motion will
be subject to the restriction on “second or successive” motions,
and provide the litigant an opportunity to withdraw the motion or
to amend it so that it contains all the § 2255 claims he believes he
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has.
Id. at 383. Consistent with Castro, the Court notifies Defendant Delgado-Montoya that it intends
to recharacterize his Motion as a § 2255 motion and afford him an opportunity to withdraw the
motion or to amend it to add additional claims he may have. See Rule 2 of the Rules Governing
Section 2255 Proceedings for the United States District Courts (providing that motion to vacate,
set aside, or correct sentence must “(1) specify all grounds for relief available to the moving
party; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed,
typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the movant or
by a person authorized to sign it for the movant”). If Defendant fails to timely amend or
withdraw his Motion, then his Motion will be recharacterized and any subsequent § 2255
motions will be subject to the restriction on “second or successive” motions in 28 U.S.C. §§
2244 and 2255(h).
IT IS ORDERED that Defendant Roman Enrique Delgado-Montoya is GRANTED
leave to amend or withdraw his Motion Under 8 USC § 1326 (Doc. 110), which the Court
intends to recharacterize as a motion to vacate, set aside, or correct sentence under 28 U.S.C. §
2255, within twenty-one (21) days of the entry of this Order.
IT IS FURTHER ORDERED that the Clerk of the Court MAIL a copy of this Order,
together with a form § 2255 motion and instructions, to Defendant Delgado-Montoya.

______________________________________
UNITED STATES DISTRICT JUDGE

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