United States District Court, D. Maine
ORDER ON PETITION FOR POST-CONVICITON RELIEF
C. NIVISON, U.S. MAGISTRATE JUDGE.
Fritz Blanchard has filed a “Petition for a Writ of
Error Coram Nobis, ” which is properly characterized as
a motion pursuant to 28 U.S.C § 2255, to vacate, set
aside or correct his sentence (Motion, ECF No. 158).
a jury trial, Petitioner was convicted of aiding and abetting
the interstate transportation of victims for prostitution.
See 18 U.S.C. §§ 2, 18, 2421; United
States v. Blanchard, 867 F.3d 1, 3 (1st Cir.
2017). The Court sentenced Petitioner to a prison term of 46
months, to be followed by a term of three years of supervised
release. (Judgment, ECF No. 134 at 1-3.)
Because Petitioner seeks relief from his sentence, his
motion, in substance, is a motion to vacate, set aside or
correct his sentence, pursuant to 28 U.S.C. §
2255. In Castro v. United States, 540
U.S. 375 (2003), the Supreme Court discussed the process 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.
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 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 (a) advises Petitioner that the Court has construed his
pro se filing (ECF No. 158) 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 October 23, 2018, either to
withdraw or to amend his section 2255 motion if he wishes to
objections to this Order shall be filed in accordance with
Federal Rule of Civil Procedure 72 and ...