United States District Court, D. Maine
ORDER ON MOTION TO AMEND (ECF NO. 215) AND MOTION TO
STAY (ECF NO. 248)
C. Nivison U.S. Magistrate Judge.
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.
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.)
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. The Court denies the motion to stay. (ECF
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. 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
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.
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.
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.
objections to this Order shall be filed in accordance with
Federal Rule of Civil Procedure 72 and ...