Filed: Jun. 28, 2012
Latest Update: Jun. 28, 2012
Summary: ORDER TERRY F. MOORER, Magistrate Judge. The petitioner, Bradley H. Pemberton, has filed a pro se pleading with this court, self-styled as a " Motion to Correct Structural Errors and Vacate the Conviction, " in which he asserts claims challenging the validity of his 2011 convictions and sentence for wire fraud, in violation of 18 U.S.C. 1343, and aggravated identity theft, in violation of 18 U.S.C. 1028A(a)(1). (Doc. No. 1.) The law is settled that 28 U.S.C. 2255 affords the exclusive
Summary: ORDER TERRY F. MOORER, Magistrate Judge. The petitioner, Bradley H. Pemberton, has filed a pro se pleading with this court, self-styled as a " Motion to Correct Structural Errors and Vacate the Conviction, " in which he asserts claims challenging the validity of his 2011 convictions and sentence for wire fraud, in violation of 18 U.S.C. 1343, and aggravated identity theft, in violation of 18 U.S.C. 1028A(a)(1). (Doc. No. 1.) The law is settled that 28 U.S.C. 2255 affords the exclusive ..
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ORDER
TERRY F. MOORER, Magistrate Judge.
The petitioner, Bradley H. Pemberton, has filed a pro se pleading with this court, self-styled as a "Motion to Correct Structural Errors and Vacate the Conviction," in which he asserts claims challenging the validity of his 2011 convictions and sentence for wire fraud, in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). (Doc. No. 1.)
The law is settled that 28 U.S.C. § 2255 affords the exclusive remedy for challenging a federal conviction and sentence, unless the remedy is inadequate or ineffective. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. 1981); Lane v. Hanberry, 601 F.2d 805 (5th Cir. 1979). The remedy afforded by § 2255 is not deemed inadequate or ineffective merely because an inmate's motion is barred by the applicable one-year period of limitation or by the gatekeeping provision on successive petitions contained in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998). Moreover, "[t]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision." In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (internal citations omitted).
Pemberton has been tried, convicted, and sentenced. His convictions and sentence were affirmed on direct appeal. See United States v. Pemberton, No. 11-12731 (11th Cir. Jun. 26, 2012). The claims he now seeks to advance may properly be presented at this time only in a 28 U.S.C. § 2255 motion. "Federal courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework." United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Accordingly, this court concludes that Pemberton's instant pleading should be construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
In light of the foregoing, and in compliance with the requirements of Castro v. United States, 540 U.S. 375, 382-83 (2003), the court hereby advises Pemberton of its intention to recharacterize his pleading (Doc. No. 1) as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The court cautions Pemberton that such recharacterization renders this motion and any subsequent § 2255 motion filed with this court susceptible to each of the procedural limitations imposed upon § 2255 motions. Specifically, Pemberton is cautioned that the instant motion and any subsequent § 2255 motion shall be subject to the one-year period of limitation and the successive petition bar applicable to post-conviction motions.1
In further compliance with the requirements of Castro, supra, it is
ORDERED that on or before July 30, 2012, Pemberton shall advise this court whether he seeks to do one of the following:
1. Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presented in his motion (Doc. No. 1);
2. Amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255 on which he wishes to challenge the convictions and sentence imposed upon him by this court; or
3. Withdraw his motion.
Pemberton is CAUTIONED that if he fails to file a response in compliance with this order, which requires that he advise the court that he wishes to do one of the above, this cause shall proceed as an action under 28 U.S.C. § 2255, with the court considering only those claims presented in his original motion (Doc. No. 1).
Because this court will not proceed on a 28 U.S.C. § 2255 motion before the direct-appeal process has concluded, Pemberton shall also advise this court whether he has filed an application for rehearing regarding the Eleventh Circuit's decision affirming his convictions and sentence.
In order to assist Pemberton in presenting any claims he wishes to assert in a 28 U.S.C. § 2255 motion, the Clerk of Court is DIRECTED to provide Pemberton with the form used for filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.