Filed: Feb. 10, 2015
Latest Update: Feb. 10, 2015
Summary: DECISION and ORDER WILLIAM M. SKRETNY, Chief District Judge. Petitioner, Kevin Zimmerman, has filed pro se a "Habeas Corpus Motion to Amend P.S.R." (Docket No. 51), which the Court construes as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 2255. Petitioner challenges the calculation of his Criminal History and Offense Level, specifically the conclusion that he was an Armed Career Criminal Offender. While the Court believes that petitioner understood he was filing th
Summary: DECISION and ORDER WILLIAM M. SKRETNY, Chief District Judge. Petitioner, Kevin Zimmerman, has filed pro se a "Habeas Corpus Motion to Amend P.S.R." (Docket No. 51), which the Court construes as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 2255. Petitioner challenges the calculation of his Criminal History and Offense Level, specifically the conclusion that he was an Armed Career Criminal Offender. While the Court believes that petitioner understood he was filing thi..
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DECISION and ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Petitioner, Kevin Zimmerman, has filed pro se a "Habeas Corpus Motion to Amend P.S.R." (Docket No. 51), which the Court construes as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner challenges the calculation of his Criminal History and Offense Level, specifically the conclusion that he was an Armed Career Criminal Offender. While the Court believes that petitioner understood he was filing this Motion under § 2255, the Court, in an abundance of caution, will first provide him with notice that the Court is construing his Motion as one brought under § 2255 and it is thus subject to the gate-keeping mechanism ("second or sucessive" rule) of 28 U.S.C. § 2255(h),1 and an opportunity to withdraw the Motion if he does not wish it be to construed as one under § 2255. See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998).
In Adams, the Second Circuit Court of Appeals held that district courts may not sua sponte convert post- conviction motions, putatively brought under some other provision, into motions pursuant to 28 U.S.C. § 2255 without first giving the petitioner notice and an opportunity to decline the conversion or withdraw the motion.2 Id.,155 F.3d at 584. The Supreme Court adopted the same rule in Castro v. United States, 540 U.S. 375 (2003).
Therefore, the Court hereby notifies petitioner that it intends to recharacterize his Habeas Corpus Motion to Amend P.S.R. as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 and that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second" or "successive" motions set forth in 28 U.S.C. § 2255(h). The recharacterization of the Motion to Amend P.S.R. to a motion under § 2255 will occur unless petitioner notifies the Court in writing by March 14, 2015 that he either (1) consents to the recharacterization despite the consequences of recharacterization, or (2) voluntary withdraws the Motion to Amend P.S.R. instead of having it recharacterized as a Motion to Vacate, Set Aside or Correct Sentence under § 2255. If petitioner does not advise the Court in writing by March 14, 2015, of either his consent to the recharacterization or his voluntary withdrawal of his Motion to Amend P.S.R., the Court will recharacterize this petition as a motion under § 2255.3
The Clerk of Court is directed to serve a copy of the application, together with a copy of this order, upon the United States Attorney for the Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202.
All docketing for this action shall be made in the related criminal action
PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE UNITED STATES ATTORNEY.
SO ORDERED.
