United States District Court, S.D. New York
S. ROMAN, United States District Judge:
currently incarcerated at Moshannon Valley Correctional
Facility in Philipsburg, Pennsylvania, brings this pro
se application styled as a "Motion Under the 28
U.S.C. 2255 and Reconsideration and Reduction of Sentencing
and 782 Amend and the New Law of Immigration 2.L.I.I."
He challenges the legality of his conviction in United
States v. Martinez-Castillo, No. 16-CR-368 (NSR)
(S.D.NY. Nov. 21, 2016). Movant has already challenged the
same conviction in a pending § 2255 motion, which the
Court ordered Respondent to answer. Martinez-Castillo v.
United States, No. 17-CV-762 (NSR) (S.D.N.Y.) (ECF No.
reasons set forth below, the Court vacates the order in No.
17-CV-762 directing Respondent to answer the motion. The
Court directs Movant, within thirty days, to: (1) notify the
Court if he wishes to withdraw his application under docket
number 17-CV-762 (NSR), pending resolution of his direct
appeal from the conviction; or (2) file an amended §
2255 motion under docket number in No. 17-CV-762, in which he
raises all of his grounds for relief.
prisoner in federal custody may bring a motion under 28
U.S.C. § 2255 attacking his conviction or sentence on
the grounds that it violates the Constitution or United
States law, was imposed without jurisdiction, exceeds the
maximum penalty, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255. Under Rule 4(b) of the Rules
Governing § 2255 Proceedings, the Court has the
authority to review and deny a § 2255 motion before
directing an answer. "[I]f it plainly appears from the
motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to
relief." Rules Governing § 2255 Proceedings, Rule
4(b); see Acosta v. Nunez, 221 F.3d 117, 123 (2d
Cir. 2000). The Court is obliged to construe pro se
pleadings liberally and interpret them "to raise the
strongest arguments they suggest." Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original); see Green v. United States, 260 F.3d 78,
83 (2d Cir. 2001). A pro se litigant, nevertheless,
is not exempt "from compliance with relevant rules of
procedural and substantive law." Triestman, 470
F.3d at 477 (citing Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)).
United States v. Martinez-Castillo, No. 16-CR-368
(NSR) (S.D.N.Y.Nov. 21, 2016), Movant Eddy Rafael Martinez
Castillo pled guilty to conspiracy to distribute and
possession with intent to distribute heroin under 21 U.S.C.
§ 846 and was sentenced to 58 months' imprisonment.
The Court entered judgment on November 21, 2016, and Martinez
Castillo filed a notice of appeal (ECF No. 53). His direct
appeal from the conviction remains pending in the United
States Court of Appeals for the Second Circuit. See
United States v. Martinez-Castillo, No. 17-312 (2d Cir.)
addition to his pending appeal, in February 2017,
Martinez-Castillo filed an application that was opened on the
Court's docket as a § 2255 motion. See
Martinez-Castillo v. United States, No. 17-CV-762 (NSR).
In that motion, Movant argues that his sentence should be
reduced based on Amendment 782 to the U.S. Sentencing
Guidelines (U.S.S.G.) and thus it appears to be in whole or
in part a motion for a sentence reduction under 18 U.S.C.
new application, opened under docket number 17-CV-2134 (NSR),
is labeled as a "Motion Under the 28 U.S.C. § 2255
and Reconsideration and Reduction of Sentencing and 782 Amend
and the New Law of Immigration 2.L.I.I." In this new
application, Movant argues among other things that: (1) his
sentence should be reduced based on Amendment 782 to the
U.S.S.G.; (2) his guilty plea was not knowing and voluntary;
and (3) his conviction should be vacated either under
Johnson v. United States, 135 S.Ct. 2551 (2015),
which struck down as unconstitutionally vague the Armed
Career Criminal Act's definition of "violent felony,
" or under Sessions v. Dimaya, No. 15-1498, a
pending Supreme Court action involving a challenge to a
criminal-removal provision in the immigration laws.
2255 "is generally the proper vehicle for a federal
prisoner's challenge to his conviction and
sentence." Jiminian v. Nash, 245 F.3d 144,
146-47 (2d Cir. 2001). In almost all cases, a movant has only
one opportunity to bring a § 2255 motion challenging a
particular judgment within the applicable limitations
motion to vacate, set aside, or correct a sentence must
conform to the Rules Governing Section 2255 Cases. Rule 2(b)
requires a motion to specify all of a movant's available
grounds for relief, setting forth the facts supporting each
of the specified grounds and stating the relief requested. A
motion must permit the Court and the respondent to comprehend
both the movant's grounds for relief and the underlying
facts and legal theory supporting each ground so that the
issues presented in the motion may be adjudicated.
a prisoner generally has only one opportunity for a full
adjudication of his claims in a motion under § 2255,
courts must grant an opportunity to withdraw an application
that is not clearly labeled as a § 2255 motion before
recharacterizing it as a § 2255 motion, Adams v.
United States, 155 F.3d 582, 584 (2d Cir. 1998) (per
curiam). Moreover, when a second § 2255 motion is filed
before a first § 2255 motion that challenges the same
conviction is final, district courts must treat the second
§ 2255 motion as an amendment to the pending motion
rather than as a successive motion. See Ching v. United
States, 298 F.3d 174 (2d Cir. 2002). In addition,
district courts generally dismiss a § 2255 motion as
premature when it is filed while a direct appeal is pending.
United States v. Outen, 286 F.3d 622, 632 (2d Cir.
2002) ((holding that although "there is no
jurisdictional bar to a district court's adjudication of
a § 2255 motion during the pendency of a direct appeal,
" such review should proceed only in extraordinary
circumstances because "the results on direct appeal may
make the district court's efforts on the § 2255
motion a nullity").
Movant's direct appeal from the conviction is pending,
his first § 2255 motion has not been resolved, and his
second application is not clearly labeled as a § 2255
motion. The Court therefore directs Movant, within thirty
days of this order, to either: (1) notify the Court in
writing if he wishes to withdraw his pending application in
17-CV-762, without prejudice to refiling after the Court of
Appeals for the Second Circuit resolves his direct appeal
from the conviction; or (2) file an amended § 2255
motion, labeled with docket number 17-CV-762, in which he
raises all of the grounds on which he challenges his
conviction. Because Movant has an opportunity to raise
all of his grounds for challenging his conviction in a single
§ 2255 motion in 17-CV-762, the Court will direct the
Clerk of Court to administratively close the second
application, filed under docket number 17-CV-2134.
Movant intends to proceed with a § 2255 motion
notwithstanding his pending direct appeal from the
conviction, and files an amended § 2255 motion in
17-CV-762 raising all of his grounds for relief, the Court
will review the amended § 2255 motion and determine at
that time whether to order Respondent to answer.
Clerk of Court is directed to mail a copy of this order to
Movant. The Court further directs the Clerk of Court to
vacate the order to answer in No. 17-CV-762 (ECF No. 3) and
to administratively close the action under docket number
Court directs Movant, within thirty days, to: (1) notify the
Court in writing if he wishes to withdraw his application
under docket number 17-CV-762 (NSR) pending resolution of his
direct appeal, without prejudice to refiling; or (2) file an
amended § 2255 motion under docket number in No.
17-CV-0762 raising all of his grounds for relief. The notice
of withdrawal or amended motion must be submitted to this
Court's Pro Se Intake Unit within thirty days of the date
of this order and bear the docket number 17-CV-762 (NSR). For
Movant's convenience, an § 2255 Motion form is
attached to this order.
Movant has not at this time made a substantial showing of a
denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. §
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this order would not be taken in good
faith and therefore in forma pauperis status is
denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
to Vacate, Set Aside, or Correct a Sentence By a Person in
Under 28 U.S.C. § 2255)
use this form, you must be a person who is serving a sentence
under a judgment against you in a federal court. You are
asking for relief from the conviction or the sentence. This
form is your motion for relief.
must file the form in the United States district court that
entered the judgment that you are challenging. If you want to
challenge a federal judgment that imposed a sentence to be
served in the future, you should file the motion in the
federal court that entered that judgment.
sure the form is typed or neatly written.
must tell the truth and sign the form. If you make a false
statement of a material fact, you may be prosecuted for
Answer all the questions. You do not need to cite law. You
may submit additional pages if necessary. If you do not fill
out the form properly, you will be asked to submit additional
or correct information. If you want to submit a brief or
arguments, you must submit them in a separate memorandum.
you cannot pay for the costs of this motion (such as costs
for an attorney or transcripts), you may ask to proceed
in forma pauperis (as a poor person). To do that,
you must fill out the last page of this form. Also, you must
submit a certificate signed by an officer at the institution
where you are confined showing the amount of money that the
institution is holding for you.
this motion, you may challenge the judgment entered by only
one court. If you want to challenge a judgment entered by a
different judge or division (either in the same district or
in a different district), you must file a separate motion.
you have completed the form, send the original and two copies
to the Clerk of the United States District Court at this
Clerk, United States District Court for __
City, State Zip Code
CAUTION: You must include in this motion all the
grounds for relief from the conviction or sentence that you
challenge. And you must state the facts that support each
ground. If you fail to set forth all the grounds in this
motion, you may be barred from presenting additional grounds
at a later date.
CAPITAL CASES: If you are under a sentence of death,
you are entitled to the assistance of counsel and should
request the appointment of counsel.
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY
Name and location of court that entered the judgment of
conviction you are challenging:
Criminal docket or case number (if you know):
Date of the judgment of conviction (if you know):
Date of sentencing:
Length of sentence:
Nature of crime (all counts):
What was your plea? (Check one)
guilty [ ] (2) Guilty [ ] (3) Nolo contendere (no contest) [
you entered a guilty plea to one count or indictment, and a
not guilty plea to another count or indictment, what did you
plead guilty to and what did you plead not guilty to?
you went to trial, what kind of trial did you have? (Check
one) Jury [ ] Judge only [ ]
you testify at a pretrial hearing, trial, or post-trial
hearing? Yes [ ] No [ ]
you appeal from the judgment of conviction? Yes [ ] No [ ]
you did appeal, answer the following:
(a) Name of court:
(b) Docket or case numher (if you know):
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:
(g) Did you file a petition for certiorari in the United
States Supreme Court? Yes [ ] No [ ]
'Yes, " answer the following:
(1) Docket or case numher (if you ...