Filed: Jul. 15, 2016
Latest Update: Jul. 15, 2016
Summary: ORDER J. RANDAL HALL , District Judge . In 2012, Defendant Jerry L. Mazone was convicted of possession of a firearm by a convicted felon, a violation of 18 U.S.C. 922(g)(1). Defendant was sentenced to 120 months imprisonment on this count. Defendant did not appeal the conviction or sentence. Defendant has never filed a motion for habeas corpus relief. On May 31, 2016, Defendant filed a "Motion for Post-Conviction Relief" (doc. no. 196) in which he asks whether he is eligible for post-co
Summary: ORDER J. RANDAL HALL , District Judge . In 2012, Defendant Jerry L. Mazone was convicted of possession of a firearm by a convicted felon, a violation of 18 U.S.C. 922(g)(1). Defendant was sentenced to 120 months imprisonment on this count. Defendant did not appeal the conviction or sentence. Defendant has never filed a motion for habeas corpus relief. On May 31, 2016, Defendant filed a "Motion for Post-Conviction Relief" (doc. no. 196) in which he asks whether he is eligible for post-con..
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ORDER
J. RANDAL HALL, District Judge.
In 2012, Defendant Jerry L. Mazone was convicted of possession of a firearm by a convicted felon, a violation of 18 U.S.C. §§ 922(g)(1). Defendant was sentenced to 120 months imprisonment on this count. Defendant did not appeal the conviction or sentence. Defendant has never filed a motion for habeas corpus relief.
On May 31, 2016, Defendant filed a "Motion for Post-Conviction Relief" (doc. no. 196) in which he asks whether he is eligible for post-conviction relief pursuant to the new rule of constitutional law announced in Johnson v. United States. 135 S.Ct. 2551 (2015). Specifically, in Johnson, the United States Supreme Court found the "residual clause" of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), to be void for vagueness and a violation of the Constitution's guarantee of due process. Id. at 2563. In Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held Johnson retroactive in cases on collateral review.
In order to attack the legality of his sentence, Defendant must petition for habeas corpus relief under 28 U.S.C. § 2255 by filing a motion to vacate, set aside or correct his sentence. Here, Defendant's motion for post-conviction relief does not reference § 2255 in any way. Nevertheless, this Court intends to recharacterize his motion as a first § 2255 motion. See Castro v. United States, 540 U.S. 375 (2003) (explaining that a district court must notify a litigant of its intent to recharacterize a pro se motion as a § 2255 habeas petition). This recharacterization means that any subsequent § 2255 motion will be subject to the statutory restriction on "second and successive" § 2255 motions. See 28 U.S.C. § 2255(b) & 2255(h) (prohibiting claims in second or successive § 2255 motions except under certain specified circumstances). Accordingly, Defendant must notify this Court in writing within thirty (30) days hereof if he contests the recharacterization of his motion, whether he wishes to withdraw the motion, or whether he wishes to amend the motion to assert any other § 2255 claims aside from his Johnson claim.1 If Defendant fails to respond to this Order within 30 days, his motion for post-conviction relief will be recharacterized as a § 2255 motion, the Clerk will docket it as a new civil action,2 and his claims will be addressed under the standards applicable to § 2255 motions.
Further, while Defendant asks for the appointment of counsel in his motion. Defendant must proceed in this matter pro se because he has not demonstrated the exceptional circumstances that would warrant the appointment of counsel. See 28 U.S.C. § 2255(g) (incorporating by reference the standards of 18 U.S.C. § 3006A(a)(2)(B) for the appointment of counsel).
ORDER ENTERED.
