United States District Court, M.D. Pennsylvania
December 02, 2005.
UNITED STATES OF AMERICA,
JOSE M. GARCIA.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
AND NOW, this 2nd day of December, 2005, upon consideration of
defendant's motion (Doc. 29) to vacate the sentence imposed by
this court on March 26, 2004, and it appearing that the motion
may be construed and ruled upon under 28 U.S.C. § 2255, see
id. ("A prisoner in custody under sentence of a [federal] court
. . . claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of
the United States . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence."), and
that the motion was filed within the prescribed limitations
period, see 28 U.S.C. § 2255 ("A 1-year period of limitation
shall apply to a motion under this section."); Kapral v. United
States, 166 F.3d 565, 577 (3d Cir. 1999) (stating that, where
defendant has not taken direct appeal, § 2255 limitations period
begins to run "on the date on which the time for filing such an
appeal expired"); see also R. GOVERNING § 2255 CASES R. 4(b)
(stating that court must review motion before ordering service on
government), but that construing and ruling upon the motion under
28 U.S.C. § 2255 may preclude defendant from filing a second or
successive motion for relief, see id. (providing that a
"second or successive motion" under § 2255 may be filed only in
limited circumstances and with approval by a court of appeals); United States v. Miller, 197 F.3d 644, 651 (3d Cir.
1999) (instructing district courts to provide notice to pro se
habeas petitioners of ramifications of construction of
post-conviction motion as under 28 U.S.C. § 2255), but cf.
Pliler v. Ford, 124 S. Ct. 2441, 2446 (2004) (disapproving of
requirement that district courts give habeas petitioners warnings
related to exhaustion and statute of limitations); United States
v. Perry, 142 Fed. Appx. 610, 613 (3d Cir. 2005) ("Miller may
go too far in requiring our District Judges to issue a procedural
roadmap to every pro se litigant who files a pleading, however
denominated, expressing an intention to challenge his or her
conviction or sentence."), it is hereby ORDERED that:
1. Defendant is GRANTED leave to elect, within
forty-five days of the date of this order, to
withdraw the motion or to have the motion construed
and ruled upon under 28 U.S.C. § 2255.
2. Defendant shall file, within forty-five days of
the date of this order, the attached election form,
indicating an election to withdraw the motion or to
have the motion construed and ruled upon under
28 U.S.C. § 2255.
3. Failure to comply with this order will result in
the motion being construed and ruled upon under
28 U.S.C. § 2255. NOTICE OF ELECTION
You have filed a post-conviction motion seeking relief from a
judgment of sentence. You must elect whether you would prefer
that the court construe and rule upon your motion under
28 U.S.C. § 2255 or whether you would prefer to withdraw your motion.
If you elect to have your motion construed and ruled upon as
one under 28 U.S.C. § 2255, you may lose your right to file
second or successive motions to correct or vacate your sentence,
even if those motions raise claims not presented in the motion
currently before the court. Federal law grants defendants the
right to file one motion under 28 U.S.C. § 2255 to correct or
vacate a sentence. Defendants are not allowed to file second or
successive motions under 28 U.S.C. § 2255 without approval from
the appropriate court of appeals. This approval is available only
in limited circumstances, outlined in 28 U.S.C. § 2255. As such,
if the court construes and rules upon your motion under
28 U.S.C. § 2255, you may lose your right to file second or successive
motions raising other grounds for relief.
The court will give you two options to proceed. You may elect
(1) to have your motion construed and ruled upon under
28 U.S.C. § 2255 or (2) to withdraw your motion with the intent of filing
an all-inclusive motion under 28 U.S.C. § 2255, raising all
grounds for relief, within 120 days of the date of this order.
You should consult 28 U.S.C. § 2255 for more information on the
availability and nature of relief under this provision.
You will be provided forty-five (45) days in which to return
the attached election form to the court. If this form is not
completed and filed within this period, the court will construe
and rule upon your motion under 28 U.S.C. § 2255. Your election
on this form, or your failure to make an election, will be
binding on you.
After you have reviewed this notice and the appropriate
provisions, print your name in the space provided and choose one
of the options listed in the form. Then sign and date the form
and file the completed form with the court within forty-five (45)
days. ELECTION FORM
I, __________________________, defendant in the above-captioned
case, have read the notice of election in its entirety and make
the following election:
___ I elect to have my motion construed and ruled
upon under 28 U.S.C. § 2255.
___ I elect to withdraw my motion with the intent of
filing an all-inclusive motion under
28 U.S.C. § 2255, raising all grounds for relief, within 120 days
of the date of this order.
I declare under penalty of perjury that the foregoing is true and
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