Lopez v. United States of America
Filing
15
ORDER signed by Chief Judge Pamela Pepper on 2/22/2021. 13 Petitioner's motion for clarification GRANTED. 2 Order denying petition for writ of audita querela VACATED; petitioner NOTIFIED that the court intends to recharacterize petiti on as §2255 habeas petition, if recharacterized petitioner will not be able to file second or successive §2255 petition without permission from 7th Circuit. By 3/19/2021 petitioner may withdraw petition or file amended petition; failure to do either by deadline will result in recharacterization and denial for reasons stated in 8/8/2017 order. (cc: all counsel and mailed to Arthur Lopez at USP Leavenworth)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ARTHUR LOPEZ,
Petitioner,
Case No. 17-cv-1088-pp
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER GRANTING PETITIONER’S MOTION FOR CLARIFICATION AND
MOTION FOR RELIEF OF ORDER ENTERED ON AUGUST 8, 2017,
PURSUANT TO RULE 60(B)(6) (DKT. NO. 13)
______________________________________________________________________________
On May 22, 2017, the petitioner filed a pleading in his underlying
criminal case. United States v. Arthur Lopez, 99-cr-209 (E.D. Wis.), Dkt. No.
532. The document was titled, “Petition Under the All Writs Act (Audita
Querela) 18 U.S.C. § 1651, Pursuant to the U.S. Supreme Court’s Decision in
United States v. Morgan, 346 U.S. 502 (1954).” Id. at 1. Among other things,
the petitioner argued that the court should not re-characterize or re-label his
petition as a petition under 28 U.S.C. §2255 or 18 U.S.C. §3582. Id. at 7. The
government responded that the petition clearly was a request to correct, set
aside or vacate the petitioner’s criminal sentence under 28 U.S.C. §2255. Dkt.
No. 533. The government argued that writs of audita qurerela were obsolete in
civil cases and never had been recognized in criminal cases. Id. at 3. The
government asked the court to issue the defendant a warning and allow him
either to withdraw or amend his pleading. Id. at 4. The petitioner filed a reply,
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arguing that under United States v. Morgan, 546 U.S. 502 (1954), courts had
the authority to issue writs of audita querela in criminal proceedings. Dkt. No.
538. He asserted that his petition was a common-law writ, filed to raise
“unanticipated circumstances arising post-judgment under an issue” that was
“non-cognizable in a § 2255.” Id. at 5. He argued that his request for relief was
based on a clarifying amendment to the U.S. Sentencing Guidelines. Id. at 6.
The court characterized the petition as an untimely 28 U.S.C. §2255 petition
and denied it. Id. at Dkt. No. 540.
The clerk’s office then opened this civil case—Case No. 17-cv-1088—
using the May 22, 2017 petition. Arthur Lopez v. United States of America, 17cv-1088 (E.D. Wis.). It treated the petition as a §2255 petition, and the same
day, entered the court’s order dismissing the petition. Id. at Dkt. No. 2. The
petitioner appealed. Id. at Dkt. No. 4. On February 26, 2018, this court denied
the petitioner’s motion for leave to proceed without prepaying the appellate
filing fee. Id. at Dkt. No. 11.
A little over two weeks later, the petitioner filed the instant motion. Id. at
Dkt. No. 13. The petitioner asked the court to clarify whether it adjudicated his
petition as a §2255 motion. Id. at 5. He insists that he did not file a §2255
motion, and instead filed a motion under 28 U.S.C. §1651. Id. Citing Castro v.
United States, 540 U.S. 375, 377 (2003), he asks, under Fed. R. Civ. P. 60(b),1
Fed. R. Civ. P. 60(b)(1) allows a court to grant a party relief from a final
judgment or order for “mistake, inadvertence, surprise, or excusable neglect.”
Rule 60(b)(6) allows a court to grant relief from a judgment or order for “any
other reason that justifies relief.”
1
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that the court “correct” its defect of mischaracterizing his petition. Id. He
makes this request “so that Petitioner will not be PREJUDICED and
PRECLUDED from filing his INITIAL § 2255 in the future under Section (f)(3).”
Id. at 6. The government has not responded to this motion. But eight months
later, the Seventh Circuit issued an order stating,
Arthur Lopez has filed a notice of appeal from the denial of his
motion under 28 U.S.C. § 2255, which we construe as an application
for a certificate of appealability. We have reviewed the final order of
the district court and the record on appeal. We find no substantial
showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2).
Accordingly, the request for a certificate of appealability is
DENIED. Lopez’s motion to proceed in forma pauperis is DENIED.
Dkt. No. 14.
In Castro, the Supreme Court held that a district court could not
recharacterize a pro se litigant’s motion as the litigant’s first §2255 motion
“unless the court informs the litigant of its intent to recharacterize, warns the
litigant that the recharacterization will subject subsequent § 2255 motions to
the law’s ‘second or successive’ restrictions, and provides the litigant with an
opportunity to withdraw, or to amend, the filing.” Castro, 540 U.S. at 377. Id.
The Court held that if the district court did not take these steps, “a
recharacterized motion will not count as a § 2255 motion for purposes of
applying § 2255’s ‘second or successive’ provision.”
The petitioner is correct that when the court recharacterized his May 22,
2017 motion as a motion under 28 U.S.C. §2255, it did not provide the
warnings required by Castro—even though the government suggested that it do
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so. The court will grant the petitioner’s motion and correct this error, giving
him the opportunity to either withdraw the petition or file an amended petition
containing all the claims he believes he has.
The court advises the petitioner, however, that recharacterization of the
petition is the court’s only option. Title 28 U.S.C. §1651 “is only a mechanism
by which the Court asserts its jurisdiction; it is not a source of jurisdiction.”
Adamczyk v. States Attorney, No. 20-cv-067-SMY, 2020 WL 5816726, at *2
(S.D. Ill. Sept. 30, 2020) (citing United States v. Ill. Bell Telephone Co., 531
F.2d 809, 814 (7th Cir. 1979)). The All Writs Act “merely permits a court to
issue writs in aid of jurisdiction acquired to grant some other form of relief.”
Telecommunications Research and Action Center v. F.C.C., 750 F.2d 70, 77
(D.C. Cir. 1984) (citations omitted). Because 28 U.S.C. §1651 only authorizes a
federal court to issue a writ in aid of jurisdiction it already has, that statute
affords the petitioner no relief if the court has no other source of jurisdiction to
consider his May 2017 request.
The petitioner asked the court to “correct the original sentencing
procedure.” Dkt. No. 1 at 15. Fed. R. Crim. P. 35(a) allows a court to correct a
sentence that resulted from an arithmetical, technical or other “clear error,”
but it gives the court only fourteen days from the date of sentencing in which to
make such a correction. The petitioner’s May 22, 2017 petition falls far outside
the fourteen-day time frame prescribed by Rule 35. Section 2255 allows a party
to file a motion to vacate, set aside or correct a sentence that was imposed in
violation of the Constitution or laws of the United States within one year of (a)
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the date on which the conviction becomes final, (b) the date on which any
impediment to making the motion created by governmental action in violation
of the Constitution or laws of the United States is removed, (c) the date on
which the right asserted was initially recognize by the Supreme Court or (d) the
date on which the facts supporting the claim or claims could have been
discovered through the exercise of due diligence. The petitioner’s May 22, 2017
petition was filed almost five years after his conviction became final and almost
a year and a half after the amendment on which his arguments rely went into
effect.
The court has no jurisdiction to consider the petitioner’s request under
Rule 35. It already has concluded that it has no jurisdiction to consider his
request under §2255. Unless the petitioner can identify some other source of
the court’s jurisdiction, it will not have jurisdiction to consider an amended
petition regardless of what the petitioner names it.
The court GRANTS the petitioner’s Motion for Clarification and Motion
for Relief of Order Entered on August 8, 2017, Pursuant to Rule 60(b)(6). Dkt.
No. 13.
The court VACATES its August 8, 2017 order denying petition for writ of
audita querela. Dkt. No. 2.
The court NOTIFIES the petitioner that it intends to recharacterize his
May 2017 petition as a motion to vacate, correct or set aside sentence under 28
U.S.C. §2255.
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The court WARNS the petitioner that if it recharacterizes the May 22,
2017 petition as a petition under 28 U.S.C. §2255, he will not be able to file a
second or successive §2255 petition unless he obtains permission to do so from
the Seventh Circuit or unless certain very limited circumstances apply.
The court ORDERS that by the end of the day on March 19, 2021, the
petitioner either may withdraw the petition (and avoid the court
recharacterizing it as a petition under 28 U.S.C. §2255) or file an amended
petition containing all the claims the petitioner believes that he has. The
petitioner must file a written withdrawal of the petition or an amended petition
in time for the court to receive it by the end of the day on March 19, 2021.
If the court does not receive either the petitioner’s request to withdraw
the May 22, 2017 petition or an amended petition by the end of the day on
Friday, March 19, 2021, the court will recharacterize the petition as a motion
under 28 U.S.C. §2255 and will deny it for the reasons it stated in its order of
August 8, 2017.
Dated in Milwaukee, Wisconsin this 22nd day of February, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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