Filed: Jul. 14, 2016
Latest Update: Jul. 14, 2016
Summary: ORDER DUDLEY H. BOWEN , District Judge . In 2004, Defendant Felicia Thomas was convicted of arson and the use of a destructive device to commit a felony, in violation of 18 U.S.C. 844 (f) (2) and 18 U.S.C. 844 (h), respectively. Defendant was sentenced to a total term of imprisonment of 207 months. Defendant did not appeal the conviction or sentence. On June 28, 2016, Defendant filed a "Motion for Sentence Reduction" in which she states that she believes she is eligible for post-convi
Summary: ORDER DUDLEY H. BOWEN , District Judge . In 2004, Defendant Felicia Thomas was convicted of arson and the use of a destructive device to commit a felony, in violation of 18 U.S.C. 844 (f) (2) and 18 U.S.C. 844 (h), respectively. Defendant was sentenced to a total term of imprisonment of 207 months. Defendant did not appeal the conviction or sentence. On June 28, 2016, Defendant filed a "Motion for Sentence Reduction" in which she states that she believes she is eligible for post-convic..
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ORDER
DUDLEY H. BOWEN, District Judge.
In 2004, Defendant Felicia Thomas was convicted of arson and the use of a destructive device to commit a felony, in violation of 18 U.S.C. § 844 (f) (2) and 18 U.S.C. §§ 844 (h), respectively. Defendant was sentenced to a total term of imprisonment of 207 months. Defendant did not appeal the conviction or sentence.
On June 28, 2016, Defendant filed a "Motion for Sentence Reduction" in which she states that she believes she 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 her sentence, Defendant must petition for habeas corpus relief under 28 U.S.C. § 2255 by filing a motion to vacate, set aside or correct her sentence. Here, Defendant's motion for sentence reduction does not reference § 2255 in any way. Nevertheless, this Court intends to recharacterize her 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 she contests the recharacterization of her motion, whether she wishes to withdraw the motion, or whether she wishes to amend the motion to assert any other § 2255 claims aside from her Johnson claim.1 If Defendant fails to respond to this Order within 30 days, her motion for sentence reduction will be recharacterized as a § 2255 motion, the Clerk will docket it as a new civil action,2 and her claims will be addressed under the standards applicable to § 2255 motions.3
ORDER ENTERED.
