Duarte v. USA

Filing 4

MEMORANDUM DECISION AND ORDER NOTIFYING PETITIONER HIS LETTER WILL BE CONSTRUED AS A MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255, IF NOT WITHDRAWN; SETTING RESPONSE TIME; AND ORDERING MAILING OF INFORMATION. Signed by Judge Ted Stewart on 07/11/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

FRANCISCO DUARTE,
Petitioner,

MEMORANDUM DECISION AND
ORDER NOTIFYING PETITIONER
HIS LETTER WILL BE CONSTRUED
AS A MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE,
PURSUANT TO 28 U.S.C. § 2255, IF
NOT WITHDRAWN; SETTING
RESPONSE TIME; AND ORDERING
MAILING OF INFORMATION

vs.

UNITED STATES OF AMERICA,

Civil Case No. 2:11-CV-297 TS

Respondent.

Criminal Case No. 2:10-CR-161 TS

This matter is before the Court for consideration of a letter sent to the Court by
Defendant/Petitioner. For the reason discussed below, the Court finds that the letter is properly
classified as a motion under 28 U.S.C. § 2255.

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I. BACKGROUND
On March 3, 2010, Defendant was indicted on single count of reentry of a previously
removed alien in violation of 8 U.S.C. § 1326. Defendant pleaded guilty and was sentenced to
21 months imprisonment on May 3, 2010. Judgment was entered on May 7, 2010. No direct
appeal was filed. On March 25, 2011, Defendant filed a letter with the Court asserting that he
received ineffective assistance of counsel.1
II. DISCUSSION
Defendant sent this Court a letter stating that he believed he received ineffective
assistance of counsel because his counsel failed to inform him of the possibility that his state and
federal sentences may run consecutively to one another. The Court finds that Defendant’s letter
is properly construed as a Motion under 28 U.S.C. § 2255.
In construing a motion filed in a criminal case which requests relief as outlined in 28
U.S.C. § 2255, the Court is required to make Petitioner “aware of the risk associated with
recharacterization” as a § 2255 motion, and obtain Petitioner’s assent or, the court must
“conclude[] that the [defendant’s] motion can only be considered under § 2255 and offer[] the
movant the opportunity to withdraw the motion rather than have it so recharacterized.”2
Petitioner must be given an “opportunity to contest the recharacterization, or to withdraw or
amend the motion.”3
1

The letter was docketed as a Motion under 28 U.S.C. § 2255 and was assigned a new
case number: 2:11-CV-297 TS.
2

United States v. Nelson, 463 F.3d 1145, 1149 (10th Cir. 2006).

3

Castro v. United States, 540 U.S. 375, 381 (2003).
2

Petitioner is cautioned that the recharacterization of his Motion as one under § 2255
would likely prevent the filing of a successive petition under the provisions of § 2255(h).4
Petitioner is further cautioned that the time for filing a new § 2255 Motion expired one year after
his May 7, 2010 judgment.5 Therefore, if Petitioner withdraws his motion, he may not be able to
timely file a new § 2255 Motion.
The Court will grant Petitioner until September 12, 2011, to file one of the following: (1)
a § 2255 motion using the official form that will be mailed to him; (2) an objection to the Court’s
recharacterization of his Motion as a § 2255 motion; or (3) a request to withdraw the Motion. If
Petitioner objects to the recharacterization, the Court will rule on the characterization issue based
on such objection without further briefing. If Petitioner files a § 2255 Motion using the official
form he may also file a supporting memorandum.
III. CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner shall have until September 12, 2011, to file (1) a § 2255
motion set forth in the official form that will be mailed to him; (2) an objection to the Court’s
recharacterization of his Motion as a § 2255 motion; or (3) a request to withdraw his Motion. It
is further

4

28 U.S.C. § 2255(h) (requiring court of appeals certification for second or successive
motions under § 2255) and Rule 9, Rules Governing Section 2255 Proceedings for the United
States District Courts (requiring Defendant to obtain an order from the appropriate court of
appeals prior to filing a second or successive motion under § 2255).
5

28 U.S.C. § 2255(f) (imposing one-year statute of limitations for filing § 2255 motions).
3

ORDERED that the Clerk of Court mail a § 2255 pleading packet to Petitioner at the
address listed on his Motion. If Petitioner chooses to utilize this packet, the Motion shall also be
filed by September 12, 2011.
DATED July 11, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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