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Goguen v. United States

United States District Court, D. Maine

September 11, 2018

ROBERT FREDERICK GOGUEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          ORDER ON MOTION TO AMEND (ECF NO. 215) AND MOTION TO STAY (ECF NO. 248)

          John C. Nivison U.S. Magistrate Judge.

         Petitioner Robert Frederick Goguen moves to amend (Motion to Amend, ECF No. 215) his motion, pursuant to 28 U.S.C § 2255, to vacate, set aside or correct his sentence (Section 2255 Motion, ECF No. 194). He also filed a motion to stay (Motion for Stay and Abeyance, ECF No. 248) that, in addition to requesting a stay, includes a request to assert additional section 2255 allegations.

         Following a guilty plea, Petitioner was convicted of failure to register as a sex offender, 18 U.S.C. § 2250(a); the Court sentenced Petitioner to a prison term of 37 months, to be followed by a term of three years of supervised release. (Amended Judgment, ECF No. 90 at 1-3.)

         Discussion

         Upon review of Petitioner's motions (ECF Nos. 215, 248), the Court grants the motion to amend. (ECF No. 215.) Petitioner's section 2255 motion is amended to include the claims set forth in the motion. The Court also grants Petitioner's request to supplement his section 2255 motion.[1] The Court denies the motion to stay. (ECF No. 248.)

         Because Petitioner seeks relief from his sentence, his initial motion (ECF No. 194), in substance, is a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255; Petitioner's prior filings reflect he understands the Court has construed his request for relief as a section 2255 motion.[2] In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court addressed the practice by which a court may construe a request for relief as a section 2255 motion:

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.[3] 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.

         Given the relief Petitioner seeks, the characterization of Petitioner's motion as a section 2255 motion is appropriate. In accordance with Castro, therefore, the Court advises Petitioner that any subsequent section 2255 motions will be subject to the second or successive restrictions applicable to section 2255 motions. Petitioner may either withdraw or amend his section 2255 motion in accordance with this Order.

         Conclusion

         The Court grants Petitioner's motion to amend (ECF No. 215). The Court denies Petitioner's motion to stay (ECF No. 248). Further, the Court (a) advises Petitioner that the Court has construed his pro se filing (ECF No. 194) to be a first Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255; (b) advises Petitioner that if at some point in the future Petitioner files a second or successive section 2255, the recharacterization of this first section 2255 motion will subject him to the restrictions that 28 U.S.C. § 2255 imposes on second or successive collateral challenges; and (c) permits Petitioner until September 25, 2018, either to withdraw or to amend his section 2255 motion if he wishes to do so. In the event Petitioner files a further amendment to his section 2255 motion, the Government will not be required to file a separate response to the amendment, but may request leave of Court to file a response.

         SO ORDERED.

         NOTICE

         Any objections to this Order shall be filed in accordance with Federal Rule of Civil Procedure 72 and ...


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