ORDER REGARDING DEFENDANT'S LETTER TO COURT; NOTICE CONCERNING SECTION 2255 MOTIONS Re: Dkt. No. 186

PHYLLIS J. HAMILTON, District Judge.

Before the court is a letter by defendant Kanya Tennysha Coleman, signed as Kanya Tennysha Hill, seeking judicial notice and judicial review of the actions by attorneys for the government in this case. Doc. no. 186. The letter attaches a separate "Notice," subtitled "Judicial Notice," signed by defendant that is addressed to defense counsel. The court notes that defendant's self-surrender date is set for March 20, 2015.

I. Request for Judicial Review

Because defendant was represented by counsel in plea negotiations, entry of plea and sentencing, the court will not construe defendant's letter as an unrepresented, pro se motion to withdraw the plea. See United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987). To the extent that defendant seeks to challenge her conviction or the validity of her guilty plea, a motion to vacate, set aside or correct the sentence is governed by 28 U.S.C. § 2255. See Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 1989) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985) ("The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.")) (internal citation and quotation marks omitted). Section 2255 provides in part as follows:

Although defendant is not yet incarcerated, she is subject to an appearance bond and self-surrender requirement and therefore satisfies the "in custody" jurisdictional requirement for seeking section 2255 relief. See Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) ("a convict released on his own recognizance pending execution of his sentence is `in custody' because he is obligated to appear at times and places ordered by the court"). A motion to vacate, set aside or correct a federal sentence under § 2255 must be filed within one year of the latest of the date on which: (1) the judgment of conviction became final; (2) an impediment to making a motion created by governmental action was removed, if such action prevented petitioner from making a motion; (3) the right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

Although defendant did not characterize her request for judicial review as a § 2255 motion, an application filed in the sentencing court, and substantively within the scope of § 2255, is a motion under § 2255, regardless of how the defendant captions the application. United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (citing Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (pleading labeled as a Rule 60(b) motion was construed as a habeas petition)). However, a court may 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 do so. Castro v. United States, 540 U.S. 375, 377 (2003). As the Ninth Circuit Court of Appeals explained:

United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2001). If this is not done, a recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255's "second or successive" provision. Castro, 540 U.S. at 377.

Defendant's letter makes vague allegations against the attorneys "claiming to represent the government," and does not allege cognizable grounds to vacate, set aside or correct the sentence pursuant to § 2255. Thus, the court will deny the request for judicial review without prejudice, and provide defendant an opportunity to clarify whether she seeks relief pursuant to § 2255 and notice of the potential adverse consequences of treating her request for relief as a § 2255 motion. That is, before recharacterizing the request for judicial review as a motion to vacate, set aside or correct the sentence pursuant to § 2255, the court provides defendant with notice that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, Castro, 540 U.S. at 383. Defendant may file, within the one-year statutory period, either (a) consent to recharacterize the letter as a § 2255 motion or (b) file an all-inclusive 28 U.S.C. § 2255 motion. Defendant's letter request for judicial review is therefore DENIED WITHOUT PREJUDICE.

In the event that defendant consents to having the request for judicial review construed as a § 2255 motion, the court notes that by entering the plea agreement, defendant agreed not to file a § 2255 motion or other collateral challenge to her conviction or sentence, except for a claim for ineffective assistance of counsel in connection with the negotiation of the plea agreement or entry of the plea. Doc. no. 135 ¶ 5. That is, under the terms of the plea agreement, defendant may seek § 2255 relief only on the ground of ineffective assistance of counsel in connection with plea negotiations or plea entry. If defendant seeks relief from the sentence in a motion under § 2255, she must show that such a motion is not barred by the plea agreement.

II. Castro Notice

The court hereby provides notice of the potential adverse consequences of recharacterizing the request for judicial review as a § 2255 motion:

NOTICE

CONCLUSION

For the foregoing reasons, the request for judicial review is DENIED WITHOUT PREJUDICE. Furthermore, IT IS ORDERED that for the request for judicial review to be recharacterized as a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, defendant may, within the one-year statutory period, either

IT IS SO ORDERED.