The opinion of the court was delivered by: Chief Judge Kane
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court are Petitioner Lenelle Gray's petition to vacate judgment (Doc. No. 1), Magistrate Judge Mannion's Report and Recommendation (Doc. No. 7), and Petitioner's objections to the Report and Recommendation (Doc. No. 9). In his recommendation, Judge Mannion noted that Petitioner sought to vacate his conviction pursuant to Rule 60(b)(4) & (6) of the Federal Rules of Civil Procedure. (Doc. No. 7 at 1.) Since the petition to vacate challenged Petitioner's criminal sentence, Judge Mannion characterized it as a challenge under 28 U.S.C. § 2255. (Id.) As a result, Judge Mannion recommended that the case be transferred to the Northern District of Ohio, because that is where Petitioner was convicted and sentenced, and therefore jurisdiction would be proper in that forum. (Id. at 4-5.)*fn1
In his objections, Petitioner argues that his petition should be allowed to proceed under 28 U.S.C. § 2241 instead of § 2255. (Doc. No. 9, at 4.) Petitioner submits that a claim under § 2255 would be ineffective because it would be time-barred. (Id.)
When a petitioner uses Rule 60(b) to attack his conviction, a court may recharacterize it as a § 2255 motion where 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." Castro v. United States, 540 U.S. 375, 377 (2003); see also In re Wagner, 421 F.3d 275, 277-78 (3d Cir. 2005).
Given Petitioner's stated objections to the recharacterization of the motion as one filed pursuant to § 2255 and the fact Petitioner has not yet been provided an opportunity to approve the recharacterization of his petition as one brought pursuant to § 2255, the Court will grant Petitioner leave to withdraw, or to amend, his filing. The Court has provided Petitioner with the attached notice of election, Exhibit B, informing him of the rights and responsibilities of a § 2255 petition.
AND NOW, on this 18 th day of November 2009, upon consideration of the report and recommendation of Judge Mannion (Doc. No. 7) and Petitioner's objections (Doc. No. 9),
IT IS HEREBY ORDERED THAT the Report and Recommendation is ADOPTED IN PART. Petitioner may not proceed pursuant to FRCP 60(b), but will be given 30 days' leave to return the attached notice of election. The above-captioned case is remanded to Judge Mannion for further proceedings consistent with this Court's order. s/ Yvette Kane Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Petitioner in the above-captioned case is a person in custody pursuant to the judgment of a court established by Act of Congress. This order is issued to provide Petitioner with the notice required under United States v. Miller, 197 F.3d 644 (3d Cir. ...