U.S. v. Boulb, 4:12-cr-40097-JPG-1. (2018)
Court: District Court, S.D. Illinois
Number: infdco20181128c43
Visitors: 6
Filed: Nov. 27, 2018
Latest Update: Nov. 27, 2018
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . Defendant Brian K. Boulb has filed two motions attacking his sentence. (ECF Nos. 48, 49.) Both of them touch on the same problem: Boulb's assertion that a state conviction of his—which factored into his status as a career offender within the meaning of U.S.S.G. 4B1.1 in this Court— has now been vacated for some reason or another. The Court believes that Boulb intended to file these motions as those under 28 U.S.C. 2255 instead, si
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . Defendant Brian K. Boulb has filed two motions attacking his sentence. (ECF Nos. 48, 49.) Both of them touch on the same problem: Boulb's assertion that a state conviction of his—which factored into his status as a career offender within the meaning of U.S.S.G. 4B1.1 in this Court— has now been vacated for some reason or another. The Court believes that Boulb intended to file these motions as those under 28 U.S.C. 2255 instead, sin..
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MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
Defendant Brian K. Boulb has filed two motions attacking his sentence. (ECF Nos. 48, 49.) Both of them touch on the same problem: Boulb's assertion that a state conviction of his—which factored into his status as a career offender within the meaning of U.S.S.G. § 4B1.1 in this Court— has now been vacated for some reason or another. The Court believes that Boulb intended to file these motions as those under 28 U.S.C. § 2255 instead, since that is the proper vehicle to attack his sentence at this stage.
The Court, however, is hesitant to construe Boulb's motions as § 2255 petitions without a clear indication that Boulb intends to invoke that statute. "[T]he court cannot so 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 v. United States, 540 U.S. 375, 377 (2003). Accordingly, the Court WARNS Boulb that if he does not withdraw his pending motions on or before January 2, 2019, the Court will construe them as § 2255 petitions and subject Boulb to the statute's second or successive filing requirements.
IT IS SO ORDERED.
Source: Leagle
