Monroe v. United States

Full title: DARIUS MONROE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court: United States District Court, S.D. New York

Date published: Aug 23, 2021

21 CV 49 (VB) (S.D.N.Y. Aug. 23, 2021)

Opinion

21 CV 49 (VB) 18 CR 585 (VB)

08-23-2021

DARIUS MONROE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE

ORDER

VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE

On June 1, 2021, petitioner Darius Monroe filed a motion pursuant to 28 U.S.C. § 2241 seeking a sentence reduction based on what he claims are intervening changes to the law. The government responded by letter dated August 20, 2021.

For the reasons set forth in the government's August 20 letter, the Court agrees that (i) it lacks jurisdiction to consider Monroe's Section 2241 motion, and (ii) because of the nature of the relief sought, the appropriate jurisdictional basis for Monroe's claims is 28 U.S.C. § 2255. Accordingly, the Court construes Monroe's motion as a Section 2255 motion to vacate, set aside, or correct sentence.

Monroe is advised that a prisoner in federal custody ordinarily has only one opportunity for an adjudication of his claims under Section 2255 because any subsequent Section 2255 motion will be subject to the restrictions on "second or successive" motions set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2244(a), 2244(b)(3)(A), 2255(h). Therefore, Monroe shall have 60 days either to agree to the recharacterization of his motion as a Section 2255 motion or to withdraw the motion. See Adams v. United States, 155 F.3d 582, 584 (2dCir. 1998).

Accordingly, by no later than October 25, 2021. Monroe shall advise the Court in writing whether he agrees to have his motion recharacterized as a Section 2255 motion, or whether he wishes to withdraw the motion.

If Monroe agrees to the recharacterization of his motion as a Section 2255 motion, the Court grants Monroe leave to file an amended Section 2255 motion that sets forth all his grounds for relief and all facts in support of those grounds. If he wishes to amend his Section 2255 motion, Monroe shall use the form for an Amended Motion Under 28 U.S.C. § 2255 attached to this Order.

If Monroe agrees to the recharacterization of his motion as a Section 2255 motion, the government shall file an answer or other pleading in response to the Section 2255 motion within 60 days after Monroe advises the Court that he agrees to the recharacterization. Monroe may file reply papers, if any, within thirty days from the date he is served with the government's answer.

If Monroe does not inform the Court of his intent by October 25, 2021. the Court will deem his motion to be a Section 2255 motion and proceed to decide it in due course. In that event, the government shall file an answer or other pleading in response to the Section 2255 motion by no later than December 27, 2021. Monroe may file reply papers, if any, within thirty days from the date he is served with the government's answer.

Any communication or submission from Monroe must be in writing and mailed to the Court at the following address:

United States District Court

Pro Se Clerk

United States Courthouse

300 Quarropas Street

White Plains, NY 10601

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. Cf. Coonedge v. United States, 369 U.S. 438, 444-45 (1962).

Chambers will mail a copy of this Order to Monroe at the following address:

Darius Monroe, Reg. No. 85814

USP Canaan

U.S. Penitentiary

P.O. Box 300

Waymart, PA 18472

SO ORDERED.