Filed: Oct. 20, 2014
Latest Update: Oct. 20, 2014
Summary: ORDER NOTIFYING DEFENDANT OF RECHARACTERIZATION AND DIRECTING DEFENDANT TO FILE MEMORANDUM SEAN F. COX, District Judge. Defendant Marcus Deangelo Lewis ("Lewis") pleaded guilty to Counts One and Two of the Superceding Indictment. This Court sentenced Defendants on May 20, 2009. Lewis filed an appeal on November 22, 2011, which was denied in an Opinion & Order issued on October 31, 2012. Acting pro se, Lewis filed a "Motion For Correction Of Presentence Investigation Worksheet C" (Docket E
Summary: ORDER NOTIFYING DEFENDANT OF RECHARACTERIZATION AND DIRECTING DEFENDANT TO FILE MEMORANDUM SEAN F. COX, District Judge. Defendant Marcus Deangelo Lewis ("Lewis") pleaded guilty to Counts One and Two of the Superceding Indictment. This Court sentenced Defendants on May 20, 2009. Lewis filed an appeal on November 22, 2011, which was denied in an Opinion & Order issued on October 31, 2012. Acting pro se, Lewis filed a "Motion For Correction Of Presentence Investigation Worksheet C" (Docket En..
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ORDER NOTIFYING DEFENDANT OF RECHARACTERIZATION AND DIRECTING DEFENDANT TO FILE MEMORANDUM
SEAN F. COX, District Judge.
Defendant Marcus Deangelo Lewis ("Lewis") pleaded guilty to Counts One and Two of the Superceding Indictment. This Court sentenced Defendants on May 20, 2009.
Lewis filed an appeal on November 22, 2011, which was denied in an Opinion & Order issued on October 31, 2012.
Acting pro se, Lewis filed a "Motion For Correction Of Presentence Investigation Worksheet C" (Docket Entry No 393) on July 18, 2014, in which he asks this Court to vacate his sentence and then re-sentence him.
Although Lewis's motion is not titled as such, the relief requested is consistent with a motion to vacate sentence under 28 U.S.C. § 2255 and is therefore the equivalent of a petition under § 2255. Before characterizing Lewis's motion as a § 2255 motion, however, Lewis must be given the opportunity to withdraw the filing. See In re Shelton, 295 F.3d 620, 622 (6th Cir. 2002). This is because "[a]n unintended byproduct of [liberally construing pro se filings as § 2255 petitions] . . . is that it may effectively deprive an uninformed pro se litigant of the future opportunity to file a motion to vacate his sentence under § 2255." Id. at 621. After a prisoner files one motion under § 2255, the Antiterrorism and Effective Death Penalty Act generally prevents a prisoner from filing a second or successive § 2255 motion. Thus, the prisoners must be aware that the Court's construction of their petition may limit their ability to pursue future avenues of collateral relief and must be given the opportunity to either agree with the Court's construction or withdraw their motion.
Accordingly, Lewis is hereby NOTIFIED that the Court intends to construe his July 18, 2014 motion as a motion for relief under 28 U.S.C. § 2255.
Lewis is ORDERED to file a one-page memorandum on or before November 30, 2014, indicating whether he agrees with the Court's intended characterization of his motion or if he intends to withdraw it. In the event that Lewis does not file a memorandum on or before that date, Lewis's motion will be deemed a motion under § 2255.
IT IS SO ORDERED.
