Brock v. USA

Filing 4

MEMORANDUM DECISION AND ORDER-denying #3 Motion to Expedite; filed by Henry Seth Brock. It is ORDERED that Petitioner shall have until August 2, 2019, to file (1) a 2255 motion set forth in the official form that will be mailed to him; (2) an objection to the Courts recharacterization of his Petition as a 2255 motion; or (3) a request to withdraw his Petition. See Order for further details. Signed by Judge Ted Stewart on 6/18/19. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
HENRY SETH BROCK,

MEMORANDUM DECISION AND
ORDER

Petitioner,
v.
UNITED STATES OF AMERICA,

Case No. 4:19-CV-47 TS

Respondent.

District Judge Ted Stewart

This matter is before the Court on a Petition for a Writ of Habeas Corpus Under 28
U.S.C. § 2241. For the reason discussed below, the Court finds that the Petition is properly
classified as a motion under 28 U.S.C. § 2255.
I. BACKGROUND
Petitioner was charge by felony information with tax evasion, securities fraud, and wire
fraud on April 5, 2018. 1 Petitioner pleaded guilty on April 27, 2018. Petitioner was sentenced
on June 4, 2018, to a sentence of 72 months in the custody of the Bureau of Prisons. Judgment
was entered on June 6, 2018. Petitioner did not file a direct appeal. Petitioner mailed the instant
Petition to the Court on June 3, 2019.

1

A previous case against Petitioner was dismissed after the Court rejected the parties’
Rule 11(c)(1)(C) plea. Case No. 2:17-CR-613 TS.

1

II. DISCUSSION
Petitioner brings the instant Petition pursuant to 28 U.S.C. § 2241. Petitioner challenges
his underlying conviction on a number of grounds, including vindictive prosecution and
ineffective assistance of counsel.
A § 2241 petition attacks the execution of a sentence and must be filed in the district
where the prisoner is confined. 2 A § 2255 petition, on the other hand, “attacks the legality of
detention and must be filed in the district that imposed the sentence.” 3 “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.” 4 That statute specifically states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released 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, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence. 5
Here, Petitioner’s claims should be brought under§ 2255, not § 2241. Petitioner
specifically attacks the legality of the judgment and sentence. Further, Petitioner has not
demonstrated that § 2255 provides an inadequate or ineffective remedy. Therefore, he must
proceed under § 2255.
In construing a motion that requests relief as outlined in § 2255, the Court is required to
make Petitioner “aware of the risk associated with recharacterization” as a § 2255 motion, and
2

Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000).

3

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citation omitted).

4

Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965).

5

28 U.S.C. § 2255(a).

2

obtain Petitioner’s assent or, the court must “conclude[] that the petitioner’s motion can only be
considered under § 2255 and offer[] the movant the opportunity to withdraw the motion rather
than have it so recharacterized.” 6 Petitioner must be given an “opportunity to contest the
recharacterization, or to withdraw or amend the motion.” 7
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). 8
Petitioner is further cautioned that the time for filing a new §2255 Motion expired one year after
his June 6, 2018 judgment. 9 Therefore, if Petitioner withdraws his motion, he may not be able to
timely file a new § 2255 Motion.
The Court will grant Petitioner until August 2, 2019, 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 Petition as a § 2255 motion; or (3) a request to withdraw the Petition. 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

6

United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006).

7

Castro v. United States, 540 U.S. 375, 382 (2003).

8

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).
9

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

3

ORDERED that Petitioner shall have until August 2, 2019, 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 Petition as a § 2255 motion; or (3) a request to withdraw his Petition. It
is further
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 August 2, 2019. It is further
ORDERED that Petitioner’s Motion to Expedite (Docket No. 3) is DENIED.
DATED this 18th day of June, 2019.
BY THE COURT:

Ted Stewart
United States District Judge

4