UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ERIC RODRIGUEZ, Movant, 20-CR-0077 (SHS) -against- 22-CV-6508 (SHS) UNITED STATES OF AMERICA, ORDER TO AMEND Respondent. SIDNEY H. STEIN, United States District Judge: Movant, currently incarcerated at USP-Hazelton, brings this pro se letter in which he challenges the judgment entered in United States v. Rodriguez, No. 1:20-CR-0077, 74 (S.D.N.Y. July 22, 2021). For the following reasons, the letter-motion (ECF 1) is designated as a motion under 28 U.S.C. § 2255. Movant must notify the Court, within 60 days, if he wishes to withdraw the application rather than have it recharacterized as a § 2255 motion. The Court also grants Movant an opportunity to file an amended § 2255 motion within 60 days of the date of this order. STANDARD OF REVIEW A prisoner in federal custody may bring a motion under § 2255 attacking his conviction or sentence on the grounds that it violates the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing § 2255 Proceedings, the Court has the authority to review and deny a § 2255 motion before directing an answer “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing § 2255 Proceedings, Rule 4(b); see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.”
-|-
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). DISCUSSION A. Designation of application as § 2255 motion Movant’s application can be construed as a motion for relief under § 2255 because he seeks to challenge his conviction and sentence. See Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (Section 2255 “is generally the proper vehicle for a federal prisoner’s challenge to his conviction and sentence’). Movant contends, among other grounds for relief, that counsel was ineffective in failing to file an appeal as requested. Before recharacterizing an application as a § 2255 motion, “the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Castro v. United States, 540 U.S. 375, 383 (2003). If Movant does not want to pursue relief under § 2255, he may notify the Court in writing within 60 days that he wishes to withdraw the application. See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam). If Movant does not inform the Court of his intent within 60 days, the application will remain designated as a motion under § 2255.
-2-
B. Leave to amend A federal prisoner’s § 2255 motion must conform to the Rules Governing Section 2255 Proceedings for the United States District Courts. Rule 2(b) of these rules requires a petition to specify all of a movant’s available grounds for relief, setting forth the facts supporting each of the specified grounds and stating the relief requested. A § 2255 motion must permit the Court and the respondent to comprehend both the movant’s grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the motion can be adjudicated. Because a federal prisoner generally has only one opportunity for a full adjudication of his grounds for relief under § 2255, the Court grants Movant an opportunity to file an amended motion under § 2255 in which he specifies all of his available grounds for relief and sets for the facts supporting each ground and the relief requested. If Movant wishes to file an amended § 2255 motion, it must be filed within 60 days of this order. CONCLUSION The Court finds that Movant’s application (ECF 1) can be construed as a motion pursuant to 28 U.S.C. § 2255. If Movant does not want to pursue relief under § 2255, he may notify the Court in writing within 60 days that he wishes to withdraw his motion. If Movant does not inform the Court of his intent within 60 days, the Court will construe this motion as a § 2255 motion. Movant is granted leave to file an amended motion under § 2255 containing all of the grounds on which he seeks relief. The amended motion must be submitted to this Court’s Pro Se Intake Unit within 60 days of the date of this order, be captioned as an “Amended Motion” and bear the same docket number as this order. An Amended Motion Under 28 U.S.C. § 2255 form is
-3-
attached to this order. If Movant fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the motion will be denied. Because Movant has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Dated: New York, New York August 9, 2022 SO ORDERED: , poe
Sidney HH. Stein, USD
-4-
10/07) Page 1 Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion Under 28 U.S.C. § 2255)
Instructions 1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief. 2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment. 3. Make sure the form is typed or neatly written. 4, You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum. 6. Ifyou cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. 7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or ina different district), you must file a separate motion. 8. When you have completed the form, send the original to the Clerk of the United States District Court at this address: Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007 9. CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date. 10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
Page 2 MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
Name (under which you were convicted): Docket or Case No.:
UNITED STATES OF AMERICA Movant (include name under which you were convicted) Wis MOTION 1. (a) Name and location of court that entered the judgment of conviction you are challenging:
(b) Criminal docket or case number (if you know): 2. (a) Date of the judgment of conviction Gf you know):
(b) Date of sentencing: 3. Length of sentence: 4. Nature of crime (all counts):
5. (a) What was your plea? (Check one) (1) Not guilty O (2) Guilty a (3) Nolo contendere (no contest) O (b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to?
6. Ifyou went to trial, what kind of trial did you have? (Check one) Jury 2 Judge only UO
Page 3 7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes O No QO 8. Did you appeal from the judgment of conviction? Yes O No QO 9. Ifyou did appeal, answer the following: (a) Name of court: (b) Docket or case number (if you know): (c) Result: (d) Date of result (if you know): (e) Citation to the case (if you know): (f) Grounds raised:
(g) Did you file a petition for certiorari in the United States Supreme Court? Yes OQ No QO If “Yes,” answer the following: (1) Docket or case number (if you know): (2) Result:
(3) Date of result (if you know): (4) Citation to the case (if you know): (5) Grounds raised:
10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications concerning this judgment of conviction in any court? Yes QO No QO 11. If your answer to Question 10 was “Yes,” give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing Gf you know):
Page 4 (4) Nature of the proceeding: (5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes OQ No Q (7) Result: (8) Date of result (if you know): (b) If you filed any second motion, petition, or application, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing Gf you know): (4) Nature of the proceeding: (5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes Q NoQ (7) Result: (8) Date of result Gf you know): (c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application? (1) First petition: Yes Q No O (2) Second petition: Yes Q NoQ
Page 5 (d) If you did not appeal from the action on any motion, petition, or application, explain briefly why you did not:
12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
GROUND ONE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes Q No OU (2) If you did not raise this issue in your direct appeal, explain why:
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes O No O (2) If your answer to Question (c)(1) is “Yes,” state: Type of motion or petition: Name and location of the court where the motion or petition was filed:
Page 6 Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
(3) Did you receive a hearing on your motion, petition, or application? Yes O NoQ (4) Did you appeal from the denial of your motion, petition, or application? Yes Q No Q (5) If your answer to Question (c)(4) is “Yes,” did you raise this issue in the appeal? Yes O No QO (6) If your answer to Question (c)(4) is “Yes,” state: Name and location of the court where the appeal was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this issue:
GROUND TWO:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
Page 7
(b) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes O No Q (2) If you did not raise this issue in your direct appeal, explain why:
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? NoQ (2) If your answer to Question (c)(1) is “Yes,” state: Type of motion or petition: Name and location of the court where the motion or petition was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
(3) Did you receive a hearing on your motion, petition, or application? Yes O No Q (4) Did you appeal from the denial of your motion, petition, or application? Yes OQ (5) If your answer to Question (c)(4) is “Yes,” did you raise this issue in the appeal? Yes OQ No O (6) If your answer to Question (c)(4) is “Yes,” state: Name and location of the court where the appeal was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
Page 8 (7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this issue:
GROUND THREE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes Q No Q (2) If you did not raise this issue in your direct appeal, explain why:
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes OO No Q (2) If your answer to Question (c)(1) is “Yes,” state: Type of motion or petition: Name and location of the court where the motion or petition was filed:
Docket or case number (if you know): Date of the court’s decision:
Page 9 Result (attach a copy of the court’s opinion or order, if available):
(3) Did you receive a hearing on your motion, petition, or application? Yes O No O (4) Did you appeal from the denial of your motion, petition, or application? Yes Q No QO (5) If your answer to Question (c)(4) is “Yes,” did you raise this issue in the appeal? Yes OO No QO (6) If your answer to Question (c)(4) is “Yes,” state: Name and location of the court where the appeal was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this issue:
GROUND FOUR:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):
Page 10
(b) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes O No O (2) If you did not raise this issue in your direct appeal, explain why:
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes OQ No O (2) If your answer to Question (c)(1) is “Yes,” state: Type of motion or petition: Name and location of the court where the motion or petition was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
(3) Did you receive a hearing on your motion, petition, or application? Yes OQ NoQ (4) Did you appeal from the denial of your motion, petition, or application? Yes O NoQ (5) If your answer to Question (c)(4) is “Yes,” did you raise this issue in the appeal? Yes O No Q (6) If your answer to Question (c)(4) is “Yes,” state: Name and location of the court where the appeal was filed:
Docket or case number (if you know): Date of the court’s decision: Result (attach a copy of the court’s opinion or order, if available):
Page 11 (7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this issue:
13. Is there any ground in this motion that you have not previously presented in some federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:
14, Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the judgment you are challenging? YesQ NoQ If “Yes,” state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised.
15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing:
(b) At arraignment and plea:
(c) At trial:
(d) At sentencing:
Page 12 (e) On appeal:
(f) In any post-conviction proceeding:
(g) On appeal from any ruling against you in a post-conviction proceeding:
16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes OQ No O 17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes OQ No O (a) If so, give name and location of court that imposed the other sentence you will serve in the future:
(b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any motion, petition, or application that challenges the judgment or sentence to be served in the future? Yes Q No Q
Page 13 18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2255 does not bar your motion.*
* The Antiterrorism and Effective Death Penalty Act of 1996 (“(AEDPA”) as contained in 28 U.S.C. § 2255, paragraph 6, provides in part that: A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — (1) the date on which the judgment of conviction became final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Page 14 Therefore, movant asks that the Court grant the following relief:
or any other relief to which movant may be entitled.
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system on (month, date, year).
Executed (signed) on (date).
Signature of Movant
If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion.