U.S. v. Cason

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CLEMMIE GENERO CASON, Defendant

Court: United States District Court, D. Minnesota

Date published: Feb 10, 2005

Criminal No. 97-303(2) (JRT/RLE) (D. Minn. Feb. 10, 2005)

Opinion

Criminal No. 97-303(2) (JRT/RLE).

February 10, 2005

Michael L. Cheever, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN 55415, for plaintiff.

Clemmie G. Cason, No. 07990-041, Federal Correctional Institution, Milan, MI 48160, pro se defendant

ORDER

JOHN TUNHEIM, District Judge

Defendant was sentenced by this Court to 120 months in prison on October 8, 1998. Defendant has now filed several motions with the Court. First, defendant filed a motion for reconsideration of this Court's denial of a new trial by leave to proceed as a 28 U.S.C. § 2255 motion or writ of error coram nobis. Second, defendant filed a motion to re-open his direct appeal. The Court construes all of these motions under § 2255. See, e.g., Castro v. United States, 540 U.S. 375, 381 (2003) ("Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category."); Raines v. United States, 423 F.2d 526, 528 n. 1 (4^th Cir. 1970) (stating that a writ of error coram nobis is properly treated as a motion under § 2255); Morales v. United States, 2001 WL 667781, at *1 (D. Minn. 2001), rev'd on other grounds, 304 F.3d 764 (8^th Cir. 2002) (construing a "Motion as a Petition for Right of Review Pursuant to 5 U.S.C. § 702" as a § 2255 motion because petitioner was "attacking his conviction and sentence on constitutional grounds").

When a court reclassifies a pro se litigant's motion as a § 2255 motion, however, it "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, 540 U.S. at 383; see also Morales v. United States, 304 F.3d 764, 767 (8^th Cir. 2002) (same).

Therefore, the Court grants defendant 30 days from the date of this order to either withdraw his current motions or file a § 2255 motion on the prescribed form for use in this district that will supercede his current submissions and set forth all of his post-conviction claims of relief. The Court suggests that the defendant file a new § 2255 motion and explain why such a motion is not time barred by the one-year statute of limitations. If defendant has not responded to this order within 20 days, he will be deemed to have consented to having his current submissions treated as a § 2255 motion, and it will thereafter be dismissed as time barred. See 28 U.S.C. § 2255.

Finally, defendant also filed a motion for appointment of counsel. The Court finds that defendant does not have a basis for appointment of counsel and denies the motion. IT IS HEREBY ORDERED that:

1. Defendant has 30 days from the date of this order in which to withdraw his current submissions [Docket Nos. 116 and 118] or file a new motion for relief under 28 U.S.C. § 2255 on the form prescribed for use in this district that will supercede his current submissions and set forth all of his post-conviction claims for relief.

2. If defendant does not take one of the two actions set out above within 30 days, he will be deemed to have consented to his current submissions being treated and decided as a motion for relief under 28 U.S.C. § 2255 and they will be dismissed as being time barred.

3. Defendant's motion for appointment of counsel [Docket No. 119] is DENIED.