Rodriguez v. United States of America

Filing 4

ORDER TO AMEND: The Court finds that Movant' s application (ECF 1) can be construed as a motion pursuant to 28 U.S.C. § 2255. If Movant does not want to pursue relief under § 2255, he may notify the Court in writing within 60 days that he wishes to withdraw his motion. If Movant does not inform the Court of his intent within 60 days, the Court will construe this motion as a § 2255 motion. Movant is granted leave to file an amended motion under § 2255 containing al l of the grounds on which he seeks relief. The amended motion must be submitted to this Court's Pro Se Intake Unit within 60 days of the date of this order, be captioned as an "Amended Motion" and bear the same docket number as this order. An Amended Motion Under 28 U.S.C. § 2255 form is attached to this order. If Movant fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the motion will be denied. Because Movant has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Sidney H. Stein on 8/9/2022) (ks)

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIC RODRIGUEZ,
20-CR-0077 (SHS)

Movant,

22-CV-6508 (SHS)

-againstUNITED STATES OF AMERICA,

ORDER TO AMEND

Respondent.
SIDNEY H. STEIN, United States District Judge:
Movant, currently incarcerated at USP-Hazelton, brings this pro se letter in which he
challenges the judgment entered in United States v. Rodriguez, No. 1:20-CR-0077, 74 (S.D.N.Y.
July 22, 2021). For the following reasons, the letter-motion (ECF 1) is designated as a motion
under 28 U.S.C.§ 2255. Movant must notify the Court, within 60 days, if he wishes to withdraw
the application rather than have it recharacterized as a§ 2255 motion. The Court also grants
Movant an opportunity to file an amended§ 2255 motion within 60 days of the date of this order.
STANDARD OF REVIEW

A prisoner in federal custody may bring a motion under§ 2255 attacking his conviction
or sentence on the grounds that it violates the Constitution or United States law, was imposed
without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack.
28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing§ 2255 Proceedings, the Court has
the authority to review and deny a§ 2255 motion before directing an answer "(i]f it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief." Rules Governing§ 2255 Proceedings, Rule 4(b); see
Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe
pro se pleadings liberally and interpret them "to raise the strongest arguments they suggest."

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Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 2 of 18

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,474 (2d Cir. 2006) (internal quotation marks

and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d
Cir. 2001 ). Nevertheless, a prose litigant is not exempt "from compliance with relevant rules of
procedural and substantive law." Triestman, 470 F.3d at 477 (citing Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)).
DISCUSSION

A. Designation of application as § 2255 motion

Movant's application can be construed as a motion for relief under§ 2255 because he
seeks to challenge his conviction and sentence. See Jiminian v. Nash, 245 F.3d 144, 146-47 (2d
Cir. 2001) (Section 2255 "is generally the proper vehicle for a federal prisoner's challenge to his
conviction and sentence"). Movant contends, among other grounds for relief, that counsel was
ineffective in failing to file an appeal as requested.
Before recharacterizing an application as a§ 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 restrictions 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 has." Castro v. United
States, 540 U.S. 375, 383 (2003). If Movant does not want to pursue relief under§ 2255, he may

notify the Court in writing within 60 days that he wishes to withdraw the application. See Adams
v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam). If Movant does not inform the

Court of his intent within 60 days, the application will remain designated as a motion under
§ 2255.

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Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 3 of 18

B. Leave to amend
A federal prisoner's § 2255 motion must conform to the Rules Governing Section 2255
Proceedings for the United States District Courts. Rule 2(b) of these rules requires a petition to
specify all of a movant' s available grounds for relief, setting forth the facts supporting each of
the specified grounds and stating the relief requested. A§ 2255 motion must permit the Court
and the respondent to comprehend both the movant' s grounds for relief and the underlying facts
and legal theory supporting each ground so that the issues presented in the motion can be
adjudicated.
Because a federal prisoner generally has only one opportunity for a full adjudication of
his grounds for relief under§ 2255, the Court grants Movant an opportunity to file an amended
motion under § 2255 in which he specifies all of his available grounds for relief and sets for the
facts supporting each ground and the relief requested. If Movant wishes to file an amended
§ 2255 motion, it must be filed within 60 days of this order.

CONCLUSION
The Court finds that Movant's application (ECF 1) can be construed as a motion
pursuant to 28 U.S.C. § 2255. If Movant does not want to pursue relief under§ 2255 , he may
notify the Court in writing within 60 days that he wishes to withdraw his motion. If Movant does
not inform the Court of his intent within 60 days, the Court will construe this motion as a§ 2255
motion.
Movant is granted leave to file an amended motion under§ 2255 containing all of the
grounds on which he seeks relief. The amended motion must be submitted to this Court' s Pro Se
Intake Unit within 60 days of the date of this order, be captioned as an "Amended Motion" and
bear the same docket number as this order. An Amended Motion Under 28 U.S.C. § 2255 form is

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Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 4 of 18

attached to this order. If Movant fails to comply with this order within the time allowed, and
cannot show good cause to excuse such failure, the motion will be denied.
Because Movant has not at this time made a substantial showing of a denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Dated: New York, New York
August 9, 2022
SO ORDERED:

Sidney H. Stein, U.S.D.J.

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Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 5 of 18
A0243
(Rev 10/07)

Page 1

Motion to Vacate, Set Aside, or Correct a Sentence
By a Person in Federal Custody
(Motion Under 28 U.S.C. § 2255)

Instructions
1.

To use this form , you must be a person who is serving a sentence under a judgment against you
in a federal court. You are asking for relief from the conviction or the sentence. This form is
your motion for relief.

2.

You must file the form in the United States district court that entered the judgment that you are
challenging. If you want to challenge a federal judgment that imposed a sentence to be served in
the future , you should file the motion in the federal court that entered that judgment.

3.

Make sure the form is typed or neatly written.

4.

You must tell the truth and sign the form. If you make a false statement rf a material fact, you
may be prosecuted for perjury.

5.

Answer all the questions. You do not need to cite law. You may submit additional pages if
necessary. If you do not fill out the form properly, you will be asked to submit additional or
correct information. If you want to submit a brief or arguments, you must submit them in a
separate memorandum.

6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you
may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last
page of this form. Also, you must submit a certificate signed by an officer at the institution
where you are confined showing the amount of money that the institution is holding for you.
7.

In this motion, you may challenge the judgment entered by only one court. If you want to
challenge a judgment entered by a different judge or division (either in the same district or in a
different district), you must file a separate motion.

8.

When you have completed the form, send the original to the Clerk of the United States District
Court at this address:

Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, NY 10007
9.

CAUTION: You must include in this motion all the grounds for relief from the
conviction or sentence that you challenge. And you must state the facts that support
each ground. If you fail to set forth all the grounds in this motion, you may be barred
from presenting additional grounds at a later date.

10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the
assistance of counsel and should request the appointment of counsel.

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 6 of 18
Page 2

MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY
United States District Court

Name

District
Docket or Case No.:

(u nde r which you we re convicted):

Place of Confinement:

Prisoner No.:

UNITED STATES OF AMERICA

Movant

(include name under which yo u we re convicted)

V.

MOTION
1.

(a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know):

2.

(a) Date of the judgment of conviction (if you know):

(b) Date of sentencing:

3.

Length of sentence:

4.

Nature of crime (all counts) :

5.

(a) What was your plea? (Check one)
(1)

Not guilty

□

(2)

Guilty

□

3)

Nolo contendere (no contest)

□

(b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count

or indictment, what did you plead guilty to and what did you plead not guilty to?

6.

If you went to trial, what kind of trial did you have? (Check one)

Jury 0

Judge only

□

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 7 of 18
Page 3
7.

Did you testify at a pretrial hearing, trial, or post-trial hearing?

Yes 0

No D

8.

Did you appeal from the judgment of conviction?

Yes D

No D

9.

If you did appeal, answer the following:
(a) Name of court:
(b) Docket or case number (if you know):

(c) Result:
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:

(g) Did you file a petition for certiorari in the United States Supreme Court?

Yes O

If "Yes," answer the following:
(1) Docket or case number (if you know):
(2) Result:

(3) Date of result (if you know):
(4) Citation to the case (if you know):
(5) Grounds raised:

10. Other than the direct appeals listed above, have you previously filed any other motions,
petitions, or applications concerning this judgment of conviction in any court?
Yes D

No D

11. If your answer to Question 10 was "Yes," give the following information:

(a) (1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):

No 0

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 8 of 18
Page 4
(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or
application?

Yes O No 0

(7) Result:
(8) Date of result (if you know):
(b) If you filed any second motion, petition, or application, give the same information:

(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or
application?

Yes O

No 0

(7) Result:
(8) Date of result (if you know):
(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your
motion, petition, or application?
(1) First petition:

Yes O

No 0

(2) Second petition:

Yes O

No 0

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 9 of 18
Page 5
(d) If you did not appeal from the action on any motion, petition, or application, explain briefly
why you did not:

12. For this motion, state every ground on which you claim that you are being held in violation of the

Constitution, laws, or treaties of the United States. Attach additional pages if you have more
than four grounds. State the facts supporting each ground.

GROUND ONE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground One:
(1) If you appealed from the judgment of conviction, did you raise this issue?

Yes

□

No

□

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post- conviction motion, petition, or application?

Yes

□

No

□

(2) If your answer to Question (c)(l) is ''Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 10 of 18
Page 6
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes O

No 0

(4) Did you appeal from the denial of your motion, petition, or application?
Yes O

No 0

(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in the appeal?
Yes O

No 0

(6) If your answer to Question (c)(4) is "Yes," state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or
raise this issue:

GROUND 'IWO:

(a) Supporting facts (Do not argue or cite law . Just state the specific facts that support your claim.):

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 11 of 18
Page 7

(b) Direct Appeal of Ground Two:

(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes O

No 0

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:

(1) Did you raise this issue in any post-conviction motion, petition, or application?

Yes O

No 0

(2) If your answer to Question (c)(l) is ''Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes O

No 0

(4) Did you appeal from the denial of your motion, petition, or application?
Yes O

No 0

(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in the appeal?
Yes O

No 0

(6) If your answer to Question (c)(4) is ''Yes," state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 12 of 18
Page 8
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or
raise this issue:

GROUND THREE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Three:

(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes O

No 0

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?

Yes O

No 0

(2) If your answer to Question (c)(l) is "Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):
Date of the court's decision:

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 13 of 18
Page 9
Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes O

No 0

(4) Did you appeal from the denial of your motion, petition, or application?
Yes O

No D

(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in the appeal?
Yes O

No 0

(6) If your answer to Question (c)(4) is ''Yes," state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or
raise this issue:

GROUND FOUR:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 14 of 18
Page 10

(b) Direct Appeal of Grou n d F o u r:

(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes □ No □
(2) If you did not raise this issue in your direct appeal, explain why:

(c) P ost-Con viction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?

Yes

□

No

□

(2) If your answer to Question (c)(l) is ''Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes

□

No

□

(4) Did you appeal from the denial of your motion, petition, or application?
Yes

□

No

□

(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in the appeal?
Yes

□

No

□

(6) If your answer to Question (c)(4) is ''Yes," state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):
Date of the cou rt's decision:
Result (attach a copy of the court's opinion or order, if available):

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 15 of 18
Page 11
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or
raise this issue:

13. Is there any ground in this motion that you have not previously presented in some federal court?
If so, which ground or grounds have not been presented, and state your reasons for not

presenting them:

14. Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court
for the judgment you are challenging?

Yes O

No 0

If "Yes," state the name and location of the court, the docket or case number, the type of

proceeding, and the issues raised.

15. Give the name and address, if known, of each attorney who represented you in the following
stages of the judgment you are challenging:
(a) At preliminary hearing:

(b) At arraignment and plea:

(c) At trial:

(d) At sentencing:

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 16 of 18
Page 12
(e) On appeal:

(f) In any post-conviction proceeding:

(g) On appeal from any ruling against you in a post-conviction proceeding:

16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in
the same court and at the same time?

Yes D No D

17. Do you have any future sentence to serve after you complete the sentence for the judgment that
you are challenging?

Yes D No D

(a) If so, give name and location of court that imposed the other sentence you will serve in the
future:

(b) Give the date the other sentence was imposed:

(c) Give the length of the other sentence:
(d) Have you filed , or do you plan to file, any motion, petition, or application that challenges the
judgment or sentence to be served in the future?

Yes D No D

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 17 of 18
Page 13
18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you
must explain why the one -year statute of limitations as contained in 28 U.S.C. § 2255 does not
bar your motion.*

* The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U .S.C.
§ 2255, paragraph 6, provides in part that:
A one-year period of limitation shall apply to a motion under this section. The limitation period
shall run from the latest of (1) the date on which the judgment of conviction became final;
(2) the date on which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making such a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.

Case 1:22-cv-06508-SHS Document 4 Filed 08/10/22 Page 18 of 18
Page 14
Therefore, movant asks that the Court grant the following relief:

or any other relief to which movant may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct
and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system on
(month, date, year).

Executed (signed) on _ _ _ __ _ _ _ _ _ (date).

Signature of Movant

If the person signing is not movant, state relationship to movant and explain why movant is not
signing this motion.