United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION FOR RELEASE
H. Rich III United States Magistrate Judge.
Marie Angel Michaud, now serving a 6-month sentence following
revocation of her probation, has filed a handwritten motion
to terminate her sentence and for immediate release. ECF No.
59 (“Motion”). Because defendant is incarcerated,
her motion might be construed as a motion for habeas relief
pursuant to 28 U.S.C. § 2255. Alternatively, her motion
might be construed as a motion to reduce her sentence,
pursuant to Fed. R. Crim. P. 35. After review, I recommend
the court dismiss it, without characterizing it as either a
motion pursuant to section 2255 or a motion pursuant to Rule
35 and without requiring the government to respond.
28 U.S.C. § 2255, a person may move to vacate his or her
sentence on one of four different grounds: (1) “that
the sentence was imposed in violation of the Constitution or
laws of the United States”; (2) “that the court
was without jurisdiction” to impose its sentence; (3)
“that the sentence was in excess of the maximum
authorized by law”; or (4) that the sentence “is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a); see Knight v. United States, 37 F.3d
769, 772 (1st Cir. 1994).
defendant's motion were construed as a motion brought
pursuant to section 2255, the burden would be on her to
establish by a preponderance of the evidence that she is
entitled to section 2255 relief. See David v. United
States, 134 F.3d 470, 474 (1st Cir. 1998); United
States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
When “a petition for federal habeas relief is presented
to the judge who presided at the petitioner's trial, the
judge is at liberty to employ the knowledge gleaned during
previous proceedings and make findings based thereon without
convening an additional hearing.” United States v.
McGill, 11 F.3d 223, 225 (1st Cir. 1993). Additionally,
if the motion were construed as a section 2255 motion,
defendant would be entitled to the notice required under
Castro v. United States, 540 U.S. 375
motion were construed under Fed. R. Crim. P. 35, that rule
provides: “Upon the government's motion made within
one year of sentencing, the court may reduce a sentence if
the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another
defendant asserts she has learned to avoid trouble, and she
urges the court to release her so that she can join her
family over the holidays. Motion at 2. While the
defendant's desire to return to her family is certainly
understandable, she has cited no facts or legal authority
that would entitled her to relief, regardless of whether she
intended to file the motion pursuant to section 2255 or Rule
35. Accordingly, I recommend that the court dismiss
defendant's motion, without characterizing it as either a
section 2255 motion or a motion pursuant to Rule
on the foregoing analysis, I recommend that the court dismiss
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 after 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.