Opinion
No. CR06-0145-LRR.
June 10, 2009
ORDER
This matter appears before the court on the defendant's motion to quash conspiracy conviction pertaining to count 1 and count 8 (docket no. 241). The defendant filed such motion on June 5, 2009.
In the instant motion, the defendant did not cite or rely on a particular rule or statute that authorizes the court to quash either count 1 or count 8. Because the defendant is in federal custody and another statute specifically addresses the issues that he raises, the court finds that the defendant is not able to attack his sentence through a motion to quash. Cf. United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000). Accordingly, the court deems it appropriate to construe or recharacterize the defendant's motion to quash as a 28 U.S.C. § 2255 motion. See Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786, 792, 157 L. Ed. 2d 778 (2003) (concluding a court may recharacterize a pro se litigant's pleading but before doing so the court "must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent [28 U.S.C.] § 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 [28 U.S.C.] § 2255 claims he believes he has"). By this order, the defendant is notified that the court intends to recharacterize his pleading as a motion pursuant to 28 U.S.C. § 2255. Id. The defendant is also warned that this recharacterization means that any subsequent 28 U.S.C. § 2255 motion will be subject to the restrictions on "second or successive" motions. Id. Finally, the defendant is directed to either withdraw the motion to quash or to amend it so that it contains all the 28 U.S.C. § 2255 claims he believes that he has by no later than July 10, 2009. Id. IT IS SO ORDERED.