The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
On May 11, 2012 Defendant, Justin A. Constantino, filed a motion to clarify sentence pursuant to Rule 60 of the Federal Rules of Civil Procedure. *fn1 Defendant seeks to correct an alleged clerical error on his entry of judgment, compel the Federal Bureau of Prisons to allow him to participate in a residential drug treatment program, and allow him to serve federal and state sentences concurrently. In the Government's response to the Defendant's motion, the Government correctly notes that a motion pursuant to Rule 60 is not properly before this Court without a prior habeas proceeding. See Harris v. United States, 367 F.3d 74, 76 (2d Cir. 2004) (discussing context in which Rule 60 motion may be brought). Defendant appears to confuse civil and criminal proceedings and erroneously seeks to correct a determination in a civil suit, prior to such a suit having been commenced.
In Adams v. United States, 155 F.3d 582, 584 (2d Cir.1998) (per curiam), 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 a petitioner notice and an opportunity to decline the conversion or withdraw the motion. *fn2 The Supreme Court adopted this same rule in Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L. Ed. 2d 778 (2003).
Therefore, this Court is hereby notifying and advising Defendant that it intends to recharacterize his Rule 60 motion to clarify 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. *fn3 If the petition is recharacterized as a motion under § 2255 it will also be subject to the one year period of limitations set forth in § 2255. *fn4 The recharacterization or conversion of this petition to a motion under § 2255 will occur unless Defendant notifies this Court in writing by August 1, 2012 that he either (1) consents to the recharacterization despite the consequences of recharacterization and the period of limitations set forth above or (2) voluntary withdraws the motion instead of having it recharacterized as a § 2255 motion. If Defendant does not advise the Court in writing by August 1, 2012 of either his consent to the recharacterization of his motion or his voluntary withdrawal of his motion, the Court will recharacterize this petition as a motion under § 2255.
Moreover, if Defendant consents to have this petition recharacterized as a motion under § 2255, he must also advise this Court by the same date, August 1, 2012, as to why the recharacterized motion under § 2255 was timely when he filed his motion on May 11, 2012. See 28 U.S.C. § 2255.