United States District Court, D. Maine
RECOMMENDED DECISION ON GOVERNMENT'S MOTION TO
C. Nivison U.S. Magistrate Judge.
Mark Razo requests, pursuant to 28 U.S.C. § 2255, that
the Court vacate, set aside or correct his sentence. (Motion,
ECF No. 269.) Petitioner seeks relief pursuant to Johnson
v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015).
Counsel was appointed to represent Petitioner as to the
Johnson claim. (Order, ECF No. 270.)
Government filed a "motion to comply" in which
motion the Government requests the Court, in accordance with
Castro v. United States, 540 U.S. 375 (2003), inform
Petitioner that his "Application for Leave to File a
Second or Successive Motion to Vacate, Set Aside, or Correct
Sentence 28 U.S.C. § 2255" may be recharacterized
as a first Motion to Vacate, Set Aside, and Correct Sentence
Pursuant to 28 U.S.C. § 2255, advise Petitioner that the
recharacterization will subject him to the provisions of
section 2255 regarding second or successive challenges, and
allow Petitioner the opportunity to withdraw or amend his
filing. (Motion, ECF No. 276.) The Government suggests the
request is appropriate because Petitioner filed his motion on
a form intended to be used when a request is made to the
First Circuit for leave to file a second or successive
section 2255 motion, and because the Court docketed
Petitioner's motion as a second motion under section
2255. Petitioner filed a pro se response stating that he
intended his filing to be a first section 2255 motion.
(Response, ECF No. 277.) Subsequently, Petitioner, through
counsel, filed a request for the Court to treat his pro se
filing as a first section 2255 motion. (ECF No. 278.)
Castro, the Supreme Court wrote:
Under a longstanding practice, a court sometimes treats as a
request for habeas relief under 28 U.S.C. § 2255 a
motion that a pro se federal prisoner has labeled
differently. Such recharacterization can have serious
consequences for the prisoner, for it subjects any subsequent
motion under § 2255 to the restrictive conditions that
federal law imposes upon a "second or successive"
(but not upon a first) federal habeas motion. § 2255,
¶ 8. In light of these consequences, we hold that the
court cannot so recharacterize a pro se
litigant's motion as the litigant's first § 2255
motion unless the court informs the litigant of its
intent to recharacterize, warns the litigant that the
recharacterization will subject subsequent § 2255
motions to the law's "second or successive"
restrictions, and provides the litigant with an opportunity
to withdraw, or to amend, the filing. Where these things are
not done, a recharacterized motion will not count as a §
2255 motion for purposes of applying § 2255's
"second or successive" provision.
540 U.S. at 377. The Supreme Court also explained that the
reason for permitting a petitioner to amend the motion is
"so that it contains all the § 2255 claims he
believes he has." Id. at 383.
Petitioner is represented by counsel on his Johnson
claim, which is the only claim asserted to this point,
Petitioner is unrepresented as to any non-Johnson
claim he may have. If Castro otherwise applies to
Petitioner's case, therefore, the relief requested by the
Government would be appropriate. Arguably, however, because
Petitioner, proceeding pro se, informed the Court that he
intends for his motion to be considered a first section 2255
motion, Castro does not apply. See Young v.
United States, 2011 WL 5552893, at *1, 2011 U.S. Dist.
Lexis 131867, at *3-4 (S.D. Ohio Nov. 15, 2011) (holding that
the court's treatment of the petitioner's filing was
not a recharacterization under Castro because the
petitioner told the court he intended the filing to be
construed as a section 2255 motion). Regardless of whether
the Castro warning is required, given that
Petitioner's motion is clearly a first section 2255
motion and because Petitioner is pro se on any potential
non-Johnson claims he might have, the issuance of
the Castro warning is reasonable.
on the foregoing analysis, I recommend the Court grant the
Government's motion (ECF No. 276) to comply, and advise
Petitioner that (a) the Court has construed his pro se filing
(ECF No. 269) to be a first Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255; (b) the
Court advise Petitioner that the recharacterization will
subject him to the restrictions that 28 U.S.C. § 2255
imposes on second or successive collateral challenges; and
(c) the Court permit Petitioner fourteen (14) days following
the Court's order to withdraw or supplement his
filing. I also recommend the Court order the
Government to answer Petitioner's motion, or his amended
motion in the event Petitioner files an amended motion,
within 45 days of the Court's order. Finally, if the
Court adopts this recommendation, consistent with the
Court's intent to recharacterize Petitioner's filing
as a first section 2255 motion, I recommend the Court grant
Petitioner's motion (ECF No. 278) to construe his section
2255 motion as a first section 2255 motion.
may file objections to those specified portions of a
magistrate judge's report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C. §
636(b)(1)(B) for which de novo review by the
district court is sought, together with a supporting
memorandum, within fourteen (14) days of being served with a
copy thereof. A responsive memorandum shall be filed within
fourteen (14) days after the filing of the objection.
to file a timely objection shall constitute a waiver of the
right to de novo review by the district court and to
appeal the district court's order.