RULING AND ORDER
BRIAN A. JACKSON, Chief Judge.
Petitioner Thurman Ray Morris filed a Motion to Correct Sentence (Doc. 311). Petitioner claims that he is entitled to 14 months credit for the time he spent in the Louisiana Department of Corrections, as well as 12 months he spent in Federal Custody, awaiting trial and sentencing, for a total of 26 months. (Doc. 311 at p. 3).
I. BACKGROUND
On July 1, 2015, Petitioner pled guilty to conspiring to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 and unlawful use of communication facilities in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. (Doc. 138, 142). On December 18, 2015, the Court sentenced Petitioner to 72 months on the conspiracy charge and 24 months on the unlawful use of communication facilities charge, to run concurrently. (Doc. 264 at p. 3). At sentencing, the Court indicated that Petitioner would be awarded 12 or 14 months time served, for the time Petitioner served in a state court matter. (Doc. 296-1 at p. 1:11-23). The Judgement, however, provided that the Petitioner would be credited 12 months, making his total sentence 60 months. Id. Petitioner then filed a Motion to Amend Judgment (Doc. 296), in which he argued that he served 14 months in state custody, rather than the 12 months reflected in the Court's Judgment. Id. The probation office investigated the time Petitioner was in state custody. (Doc. 309). A typographical error was discovered in the database used to determine Petitioner's time in state custody, and a further review of the matter revealed that Petitioner, should, in fact, be credit for 14 months instead of 12 months. Id. On June 26, 2017, the Court thereafter entered an amended judgment reflecting this correction, making Petitioner's total sentence 58 months. (Doc. 310 at p. 2).
Less than a month later, on July 13, 2017, Petitioner filed a Motion to Correct his Sentence. (Doc. 310). Petitioner claims that he is entitled to 14 months credit for the time he spent in the Louisiana Department of Corrections, as well as 12 months he spent in Federal Custody, awaiting trial and sentencing, for a total of 26 months. (Doc. 311).
II. DISCUSSION
Petitioner styled his motion as a Motion to Correct his Sentence. (Doc. 311). Rule 35 of the Federal Rules of Criminal Procedure, titled "Correcting or Reducing a Sentence", provides that "[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." The Court is well-beyond this 14-day limit.
The Court must therefore construe Plaintiff's motion as a 28 U.S.C. § 2255 Motion to Vacate, Amend, Set Aside, or his Correct Sentence1. Because Petitioner did not indicate that he intended to file a § 2255 motion, this Court is required to give the warnings discussed by the United States Supreme Court in Castro v. United States, 540 U.S. 375 (2003).2 In Castro, the Supreme Court held that a district court should not recharacterize a pro se post-conviction motion as a first § 2255 motion absent notice and warning to the Petitioner as to the consequences of that recharacterization. Id. at 383.
Pursuant to Castro, Petitioner is advised that any § 2255 motion that he files in the future will be subject to the restrictions imposed on second or successive motions. The Court must give Petitioner the opportunity to withdraw the motion or amend the recharacterized motion so that the motion contains all of the grounds for relief that he believes are available to him under § 2255.
III. CONCLUSION
Accordingly,
IT IS ORDERED that within 21 days of this Order, Petitioner either: (1) withdraw his Motion to Correct Sentence (Doc. 311) that the Court has recharacterized as a § 2255 motion or; (2) file an amended motion on the attached § 2255 form that includes all grounds for relief that Petitioner believes are available to him. If the motion is not withdrawn, Petitioner must file an amended motion on the attached form even if he decides not to include new or additional grounds for relief.
IT IS FURTHER ORDERED that failure to comply with this Order may result in dismissal of this action under Federal Rule of Civil Procedure 41(b) for failure to comply with a Court order.
PETITIONER IS FURTHER ADVISED that any subsequent § 2255 motion filed by him will be subject to the following requirements:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
IT IS FURTHER ORDERED that the Clerk of Court send a copy of this Order to Petitioner and to provide him with the attached § 2255 forms.
Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody
(Motion Under 28 U.S.C. § 2255)
Instructions
1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.
2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit any legal arguments, you must submit them in a separate memorandum. Be aware that any such memorandum may be subject to page limits set forth in the local rules of the court where you file this motion.
6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.
7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.
8. When you have completed the form, send the original and ____ copies to the Clerk of the United States District Court at this address:
Clerk, United States District Court for
Address
City, State Zip Code
If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the court to file-stamp it and return it to you.
9. CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY
United States District Court District
Name (under which you were convicted): Docket or Case No.:
Place of Confinement: Prisoner No.:
UNITED STATES OF AMERICA Movant (include name under which convicted)
V.
MOTION
1. (a) Name and location of court which entered the judgment of conviction you are challenging:
(b) Criminal docket or case number (if you know): _____________________________________
2. (a) Date of the judgment of conviction (if you know): ______________________________
(b) Date of sentencing: _______________________________________________________________
3. Length of sentence: ________________________________________________________________
4. Nature of crime (all counts):
_______________________________________________________________________________________
5. (a) What was your plea? (Check one)
(1) Not guilty [] (2) Guilty [] (3) Nolo contendere (no contest) []
6. (b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to?
__________________________________________________________________________________________
6. If you went to trial, what kind of trial did you have? (Check one) Jury[] Judge only[]
7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes [] No []
8. Did you appeal from the judgment of conviction? Yes [] No []
9. If you did appeal, answer the following:
(a) Name of court: _________________________________________________________________________
(b) Docket or case number (if you know): __________________________________________________
(c) Result: __________________________________________________________________________________
(d) Date of result (if you know): ____________________________________________________________
(e) Citation to the case (if you know): _______________________________________________________
(f) Grounds raised:
____________________________________________________________________________________________
(g) Did you file a petition for certiorari in the United States Supreme Court? Yes [] No []
If "Yes," answer the following:
(1) Docket or case number (if you know): ____________________________________________________
(2) Result: ___________________________________________________________________________________ ____________________________________________________________________________________________________
(3) Date of result (if you know): _____________________________________________________________
(4) Citation to the case (if you know): _______________________________________________________
(5) Grounds raised:
_____________________________________________________________________________________________
10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications, concerning this judgment of conviction in any court?
Yes [] No []
11. If your answer to Question 10 was "Yes," give the following information:
(a) (1) Name of court: ________________________________________________________________________
(2) Docket or case number (if you know): _____________________________________________________
(3) Date of filing (if you know): _______________________________________________________________
(4) Nature of the proceeding: _________________________________________________________________
(5) Grounds raised:
_______________________________________________________________________________________________
(6) Did you receive a hearing where evidence was given on your motion, petition, or application?
Yes [] No []
(7) Result: _____________________________________________________________________________________
(8) Date of result (if you know): ________________________________________________________________
(b) If you filed any second motion, petition, or application, give the same information:
(1) Name of court: ______________________________________________________________________________
(2) Docket or case number (if you know): _______________________________________________________
(3) Date of filing (if you know): _________________________________________________________________
(4) Nature of the proceeding: ___________________________________________________________________
(5) Grounds raised:
_______________________________________________________________________________________________
(6) Did you receive a hearing where evidence was given on your motion, petition, or application?
Yes [] No []
(7) Result: _____________________________________________________________________________________
(8) Date of result (if you know): ________________________________________________________________
(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application?
(1) First petition: Yes [] No []
(2) Second petition: Yes [] No []
(d) If you did not appeal from the action on any motion, petition or application, explain briefly why you did not:
___________________________________________________________________________________________________
12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. Any legal arguments must be submitted in a separate memorandum.
GROUND ONE: ________________________________________________________________________ ____________________________________________________________________________________________________________
(a) Supporting, facts (Do not argue or cite law. Just state the specific facts that support your claim):
_______________________________________________________________________________________________________
(b) Direct Appeal of Ground One:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes [] No []
(2) If you did not raise this issue in your direct appeal, explain why:
____________________________________________________________________________________________________
(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [] No []
(2) If you answer to Question (c)(1) is "Yes," state:
Type of motion or petition: ___________________________________________________________________
Name and location of the court where the motion or petition was filed:
____________________________________________________________________________________________________
Docket or case number (if you know): __________________________________________________________
Date of the court's decision: _________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
____________________________________________________________________________________________________
(3) Did you receive a hearing on your motion, petition, or application?
Yes [] No []
(4) Did you appeal from the denial of your motion, petition, or application?
Yes [] No []
(5) If your answer to Question (c)(4) is "Yes," did you raise the issue in the appeal?
Yes [] No []
(6) If your answer to Question (c)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
____________________________________________________________________________________________________
Docket or case number (if you know): _____________________________________________________________
Date of the court's decision: _______________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
_____________________________________________________________________________________________________
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or raise this issue:
GROUND TWO: ________________________________________________________________________ ____________________________________________________________________________________________________________
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
____________________________________________________________________________________________________
(b) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes [] No []
(2) If you did not raise this issue in your direct appeal, explain why:
____________________________________________________________________________________________________
(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [] No []
(2) If you answer to Question (c)(1) is "Yes," state:
Type of motion or petition: ________________________________________________________________________
Name and location of the court where the motion or petition was filed:
_____________________________________________________________________________________________________
Docket or case number (if you know): ______________________________________________________________
Date of the court's decision: ________________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
______________________________________________________________________________________________________
(3) Did you receive a hearing on your motion, petition, or application?
Yes [] No []
(4) Did you appeal from the denial of your motion, petition, or application?
Yes [] No []
(5) If your answer to Question (c)(4) is "Yes," did you raise the issue in the appeal?
Yes [] No []
(6) If your answer to Question (c)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
____________________________________________________________________________________________________
Docket or case number (if you know): _____________________________________________________________
Date of the court's decision: _______________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
____________________________________________________________________________________________________
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or raise this issue:
____________________________________________________________________________________________________
GROUND THREE: ________________________________________________________________________________________ ____________________________________________________________________________________________________
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
____________________________________________________________________________________________________
(b) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes [] No []
(2) If you did not raise this issue in your direct appeal, explain why:
_____________________________________________________________________________________________________
(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [] No []
(2) If you answer to Question (c)(1) is "Yes," state:
Type of motion or petition: __________________________________________________________________________
Name and location of the court where the motion or petition was filed:
_______________________________________________________________________________________________________
Docket or case number (if you know): ________________________________________________________________
Date of the court's decision: __________________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
_______________________________________________________________________________________________________
(3) Did you receive a hearing on your motion, petition, or application?
Yes [] No []
(4) Did you appeal from the denial of your motion, petition, or application?
Yes [] No []
(5) If your answer to Question (c)(4) is "Yes," did you raise the issue in the appeal?
Yes [] No []
(6) If your answer to Question (c)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
____________________________________________________________________________________________________
Docket or case number (if you know): _____________________________________________________________
Date of the court's decision: _______________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
____________________________________________________________________________________________________
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or raise this issue:
______________________________________________________________________________________________________
GROUND FOUR: ________________________________________________________________________ ____________________________________________________________________________________________________________
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
____________________________________________________________________________________________________
(b) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes [] No []
(2) If you did not raise this issue in your direct appeal, explain why:
_____________________________________________________________________________________________________
(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [] No []
(2) If you answer to Question (c)(1) is "Yes," state:
Type of motion or petition: __________________________________________________________________________
Name and location of the court where the motion or petition was filed:
_______________________________________________________________________________________________________
Docket or case number (if you know): ________________________________________________________________
Date of the court's decision: __________________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
________________________________________________________________________________________________________
(3) Did you receive a hearing on your motion, petition, or application?
Yes [] No []
(4) Did you appeal from the denial of your motion, petition, or application?
Yes [] No []
(5) If your answer to Question (c)(4) is "Yes," did you raise the issue in the appeal?
Yes [] No []
(6) If your answer to Question (c)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
_______________________________________________________________________________________________________
Docket or case number (if you know): ________________________________________________________________
Date of the court's decision: _________________________________________________________________
Result (attach a copy of the court's opinion or order, if available):
____________________________________________________________________________________________________
(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain why you did not appeal or raise this issue:
____________________________________________________________________________________________________
13. Is there any ground in this motion that you have not previously presented in some federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:
____________________________________________________________________________________________________
14. Do you have any motion, petition, or appeal nor pending (filed and not decided yet) in any court for the you are challenging? Yes [] No []
If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised.
____________________________________________________________________________________________________
15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging:
(a) At the preliminary hearing:
____________________________________________________________________________________________________
(b) At the arraignment and plea:
____________________________________________________________________________________________________
(c) At the trial:
____________________________________________________________________________________________________
(d) At sentencing:
____________________________________________________________________________________________________
(e) On appeal:
____________________________________________________________________________________________________
(f) In any post-conviction proceeding.
____________________________________________________________________________________________________
(g) On appeal from any ruling against you in a posti-conviction proceeding:
____________________________________________________________________________________________________
16. Were you sentenced on more than one court of an indictment, or on more than one indictment, in the same court and at the same time? Yes [] No []
17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes [] No []
(a) If so, give name and location of court that imposed the other sentence you will serve in the future:
____________________________________________________________________________________________________
(b) Give the date the other sentence was imposed: _________________________________________________
(c) Give the length of the other sentence: __________________________________________________________
(d) Have you file, or do you plan to file, any motion, petition, or application that challenges the judgment or sentence to be served in the future? Yes [] No []
18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitation as contained in 28 U.S.C. § 2255 does not bar your motion.*
______________________________________________________________________________________________________
Therefore, movant asks that the Court grant the following relief:
_____________________________________________________________________________________________________________
or any other relief to which movant may be entitled.
________________________________________
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Motion
under 28 U.S.C. § 2255 was placed in the prison mailing system on ______________________________________
(month, date, year)
Executed (signed) on _______________________________________ (date)
________________________________________
Signature of Movant
If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion.
