Filed: Feb. 16, 2012
Latest Update: Feb. 16, 2012
Summary: MEMORANDUM OPINION AND ORDER BRUCE D. BLACK, District Judge. This matter is before the Court on Defendant's letter (CV Doc. 12; CR Doc. 38), which the Court construes as a motion to correct or reduce his sentence. As grounds for the requested relief, Defendant alleges he was denied effective assistance of counsel in the criminal proceeding and has made a record of good post-conviction conduct. The Court denied Defendant's earlier motion under 28 U.S.C. 2255 (CV Doc. 1; CR Doc. 29). Defendan
Summary: MEMORANDUM OPINION AND ORDER BRUCE D. BLACK, District Judge. This matter is before the Court on Defendant's letter (CV Doc. 12; CR Doc. 38), which the Court construes as a motion to correct or reduce his sentence. As grounds for the requested relief, Defendant alleges he was denied effective assistance of counsel in the criminal proceeding and has made a record of good post-conviction conduct. The Court denied Defendant's earlier motion under 28 U.S.C. 2255 (CV Doc. 1; CR Doc. 29). Defendant..
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MEMORANDUM OPINION AND ORDER
BRUCE D. BLACK, District Judge.
This matter is before the Court on Defendant's letter (CV Doc. 12; CR Doc. 38), which the Court construes as a motion to correct or reduce his sentence. As grounds for the requested relief, Defendant alleges he was denied effective assistance of counsel in the criminal proceeding and has made a record of good post-conviction conduct. The Court denied Defendant's earlier motion under 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 29).
Defendant's claim based on ineffective assistance of counsel may be pursued only under 28 U.S.C. § 2255. This claim is expressly contemplated by § 2255: relief is available where "the sentence was imposed in violation of the Constitution or laws . . ., or . . . the court was without jurisdiction to impose such sentence," § 2255, and the terms of § 2255 provide the exclusive avenue for attacking a federal criminal sentence, see Baker v. Sheriff, 477 F.2d 118, 119 (10th Cir. 1973); Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). Because Defendant previously filed a § 2255 motion, however, the Court will not recharacterize the letter-motion as a § 2255 motion. See United States v. Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005) (ruling that a district court does not abuse its discretion in declining to recast pleadings as a § 2255 motion where relief "would, at least facially, `be barred . . . as second or successive [under § 2255 ¶ 8].'") (citing Brown v. Warden, Springfield Med. Ctr. for Fed. Prisoners, 315 F.3d 1268, 1270 (10th Cir. 2003). The Court will dismiss Defendant's claim of ineffective assistance of counsel for lack of jurisdiction. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).
Furthermore, Defendant's post-conviction conduct provides no grounds for reduction of his sentence. See 18 U.S.C. § 3582; United States v. Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997). The Court will deny the request for reduction.
IT IS THEREFORE ORDERED that to the extent Defendant's letter-motion (CV Doc. 12; CR Doc. 38) seeks to vacate, set aside, or correct his sentence, the motion is DISMISSED for lack of jurisdiction; and Defendant's alternative request to reduce his sentence is DENIED.
