RECOMMENDED DECISION ON MOTION FOR RELEASE

JOHN H. RICH, III, Magistrate Judge.

Defendant, Marie Angel Michaud, now serving a 6-month sentence following revocation of her probation, has filed a handwritten motion to terminate her sentence and for immediate release. ECF No. 59 ("Motion"). Because defendant is incarcerated, her motion might be construed as a motion for habeas relief pursuant to 28 U.S.C. § 2255. Alternatively, her motion might be construed as a motion to reduce her sentence, pursuant to Fed. R. Crim. P. 35. After review, I recommend the court dismiss it, without characterizing it as either a motion pursuant to section 2255 or a motion pursuant to Rule 35 and without requiring the government to respond.

I. Discussion

Under 28 U.S.C. § 2255, a person may move to vacate his or her sentence on one of four different grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

If defendant's motion were construed as a motion brought pursuant to section 2255, the burden would be on her to establish by a preponderance of the evidence that she is entitled to section 2255 relief. See David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When "a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Additionally, if the motion were construed as a section 2255 motion, defendant would be entitled to the notice required under Castro v. United States, 540 U.S. 375 (2003).1

If the motion were construed under Fed. R. Crim. P. 35, that rule provides: "Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person."

Here, defendant asserts she has learned to avoid trouble, and she urges the court to release her so that she can join her family over the holidays. Motion at 2. While the defendant's desire to return to her family is certainly understandable, she has cited no facts or legal authority that would entitled her to relief, regardless of whether she intended to file the motion pursuant to section 2255 or Rule 35. Accordingly, I recommend that the court dismiss defendant's motion, without characterizing it as either a section 2255 motion or a motion pursuant to Rule 35.2

II. Conclusion

Based on the foregoing analysis, I recommend that the court dismiss defendant's motion.

NOTICE

A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within fourteen (14) days after being served with a copy thereof. A responsive memorandum shall be filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.