United States District Court, W.D. New York
DECISION and ORDER
WILLIAM M. SKRETNY, Senior District Judge.
Currently before this Court is Petitioner Markel Curry's "Motion Under Post Conviction Relief Act or in the Alternative Writ for Habeas Corpus, " which this Court previously recharacterized as a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (Docket Nos. 265, 266.) For the reasons that follow, Petitioner must be given the opportunity to withdraw his motion or to amend it.
On January 29, 2007, Petitioner pleaded guilty to conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848(a). (Docket No. 188.) This Court sentenced Petitioner on October 23, 2007, to, inter alia, a term of imprisonment of 300 months. (Docket No. 248.)
Petitioner filed a notice of appeal on October 31, 2007. (Docket No. 252.) The United States Court of Appeals for the Second Circuit summarily affirmed this Court's judgment on January 7, 2009. (Docket No. 262.)
On August 30, 2010, Petitioner, proceeding pro se, filed a "Motion Under Post Conviction Relief Act, or in the Alternative Writ for Habeas Corpus." (Docket No. 265.) On September 22, 2010, this Court issued a Decision and Order that (1) properly recharacterized Petitioner's motion as one to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, and (2) directing the Government to, inter alia, respond to the allegations in Petitioner's petition. (Docket No. 266.)
In response to this Court's Decision and Order, Petitioner filed a document on October 4, 2010, entitled "Petitioner's Opposition to the District Courts Sua-Sponte, Recharacterization of Motion Under Post-Conviction Relief Act as a 2255 Motion." (Docket No. 267.) Therein, Petitioner plainly states his opposition to the recharacterization of his motion, claiming instead that he seeks relief under the Post-Conviction Relief Act and pursuant to 28 U.S.C. § 2241.
In Castro v. United States, the United States Supreme Court held that pro se petitioners are entitled to notice and warning before a court may recharacterize their submissions as a first motion seeking relief under 28 U.S.C. § 2255. 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003); see also Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998). The Supreme Court requires the following procedure:
[T]he district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.
Castro, 540 U.S. at 383.
This Court previously found it proper to recharacterize Petitioner's "Motion Under Post Conviction Relief Act, or in the Alternative Writ for Habeas Corpus" as a motion to vacate, set aside, or correct sentence under § 2255. (See Docket No. 266). This would be Petitioner's first § 2255 motion, but he does not agree to this recharacterization and, in fact, opposes it. Under Castro, he must therefore be permitted the opportunity to withdraw his motion or amend it.
Consequently, Petitioner is hereby afforded the opportunity to withdraw his motion or amend it to include all claims under § 2255 that he believes he has. Petitioner is warned that should he elect to proceed with his motion or amended motion, this Court will recharacterize it as a motion under § 2255 and, consequently, subsequent § 2255 motions will be ...