Opinion
1:22CV788 1:18 CR370-1
04-18-2023
LEANDRE EUGENE HARWELL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal prisoner, submitted a Letter [Doc. #38] in which he requests that the sentencing judge in his case change his sentence to run concurrently with another sentence instead of consecutively. However, Petitioner provides no legal authority allowing the alteration of his Judgment that he seeks. Because Petitioner seeks to attack the conviction or sentence he received, and out of an abundance of caution, the Court treated the filing as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Nevertheless, the Motion cannot be further processed for the following reason:
1. The Motion is not on the proper § 2255 form.
Because of this pleading failure, this particular Motion will be dismissed, but without prejudice to Petitioner promptly filing a new motion properly following the 28 U.S.C. § 2255 forms and correcting the defect of the present Motion if he seeks to file under § 2255. To further aid Petitioner, the Clerk is instructed to send Petitioner new § 2255 forms and instructions for filing a § 2255 motion, which Petitioner should follow if he wishes to bring a claim under § 2255.
Because Petitioner's submission is being dismissed without prejudice and is not being decided on its merits, this case will not count as a first motion which would later trigger the prohibitions against second or successive motions found in 28 U.S.C. § 2255(h). However, if Petitioner chooses to later submit a § 2255 motion that conforms with this Order and Recommendation, he should be aware that he is normally entitled to have only one § 2255 motion decided on its merits. Second or successive motions are barred from consideration by this Court unless a petitioner first receives permission from the Fourth Circuit Court of Appeals to file such a motion. 28 U.S.C. §§ 2255(h) and 2244. That permission is granted only in very narrow circumstances. Because of this, Petitioner should act carefully in resubmitting a motion. See generally Castro v. United States, 540 U.S. 375 (2003). If Petitioner wishes to challenge his conviction, he must use the § 2255 forms supplied by the Court, include all of the claims for relief he wishes to raise, and closely follow the instructions provided. To the extent there are any issues regarding the running of the statute of limitations in this case, the parties can litigate those issues following any refiling by Petitioner. If Petitioner wants a form of relief other than relief from his conviction or sentence, he should make that clear in any new submission and should state that he is not seeking to attack his conviction or sentence. He should not use the § 2255 forms in that instance. Finally, Petitioner may choose not to submit a motion, in which case his claims will not be considered further.
The Court also notes that it is possible that Petitioner intends to file a Compassionate Release Motion pursuant to § 3582(c)(1)(A). Under § 3582(c)(1)(A), “the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that-- (i) extraordinary and compelling reasons warrant such a reduction.” If this is the motion Petitioner intends to file, he may request the appropriate forms from the Clerk's Office or from the Bureau of Prisons, or he may otherwise submit his request making it clear that his motion is a request for compassionate release under § 3582(c)(1)(A).
IT IS THEREFORE ORDERED that the Clerk is instructed to send Petitioner § 2255 forms and instructions.
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Petitioner promptly filing a corrected motion on the proper § 2255 forms, or filing a Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A) if that is his intent.