Opinion
NO. 7:16-CV-00068-HL-TQL
06-28-2016
GARY LOCKETT, Petitioner, v. WARDEN, FCI Estill, SC, Respondent.
ORDER
Petitioner Gary Lockett, an inmate currently confined at the Federal Correctional Institution in Estill, South Carolina, has filed a pro se petition on the Court's standard form for federal habeas corpus relief pursuant to 28 U.S.C. § 2241. In his Petition, Petitioner challenges his March 26, 2012 conviction in this district, contending that his sentencing enhancement as a career offender is illegal. (Pet. 1, 6, ECF No. 1.) Petitioner requests that his sentence be vacated and that he be resentenced without the career offender enhancement. Id. at 6.
Petitioner's challenge to his sentence is based on the United States Supreme Court's recent decisions in Johnson v. United States, 135 S. Ct. 2251 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016). (See Pet. at 6.) Johnson held that certain text within the Armed Career Criminal Act ("ACCA") known as the "residual clause" was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Welch held that the rule announced in Johnson is retroactive because it is a substantive rule of constitutional law. Welch, 136 S. Ct. at 1268. The Eleventh Circuit recently confirmed that Johnson can serve as the basis for a second or successive § 2255 motion. In re Robinson, No. 16-11304, 2016 WL 1583616, at *1 (11th Cir. Apr. 19, 2016).
In this case, Petitioner has not yet filed a § 2255 motion, and it appears such motion is the appropriate vehicle to challenge the application of the career offender enhancement to his sentence. See Robinson, 2016 WL 1583616 at *1. This Court will thus recharacterize Petitioner's § 2241 filing as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Such recharacterization may have serious consequences upon Petitioner's future rights, however, because the filing of a first motion under § 2255 will subject any subsequent motion attacking his federal conviction or sentence to the restrictive conditions that federal law imposes upon a second or successive § 2255 motion. Castro v. United States, 540 U.S. 375, 381-83 (2003); Gooden v. United States, 627 F.3d 846, 847-48 (11th Cir. 2010).
Because of these consequences, and in accordance with the Supreme Court's direction in Castro, the Court hereby NOTIFIES Petitioner that the Court intends to recharacterize this action as a first motion under 28 U.S.C. § 2255. The Court further WARNS Petitioner that such recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, as provided in 28 U.S.C. § 2255(h). Petitioner is also advised to consult 28 U.S.C. § 2255(f) regarding the applicable one-year statute of limitations within which new claims must be filed.
WHEREFORE, Petitioner shall have until July 27, 2016 to take one of the following actions:
(1) Notify this Court that he will assert only the claims contained in his original Petition (ECF No. 1), as recharacterized by this Court as a section 2255 motion;
(2) Amend his motion so that it contains any additional claims he may have attacking his federal conviction or sentence; or
(3) Withdraw his motion.
If Petitioner fails to respond to this Order, this action shall proceed under § 2255, with the Court considering only those claims presented in Petitioner's original motion. The Clerk is DIRECTED to re-file the Petition in Petitioner's criminal case and to DISMISS this civil action.
SO ORDERED, this 28th day of June, 2016.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE