Opinion
Civil Case No. 2:02-CV-1011 TS, Criminal Case No. 2:00-CR-342 TS.
June 22, 2004
ORDER CONSTRUING AND DISMISSING PETITIONER'S MOTION AS UNDER 28 U.S.C. § 2255 AND CONSTRUING ADDITIONAL FILING NUNC PRO TUNC
Defendant was sentenced in the underlying criminal case (Case No. 2:00-CR-342 TS) on December 20, 2000. Judgment was entered in that case on January 4, 2001. Thereafter, Petitioner filed a "Motion to Modify Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2)" (hereinafter "the § 3582 Motion") on September 9, 2002, and the instant case was opened. It has recently come to the Court's attention that Petitioner has also signed a Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (hereinafter "the § 2255 Motion). However, that document, although received by the government, was never filed with the Court.
The § 2255 Motion bears the heading, "United States District Court Central District of California." However, no such Motion appears on the docket for that court.
This procedural history leaves the Court in an unusual posture. The filing on record with the Court — the § 3582 Motion — even if construed as a § 2255 Motion, is far beyond the one-year period of limitations set forth by that statute. However, the § 2255 which has not been filed with the Court, but which it appears that Petitioner attempted to file, was within the statute of limitations.
The Certificate of Service attached to the § 2255 Motion certifies that a copy of that Motion was mailed to two people: 1) "Honorable Ted Stewart, U.S. District Judge," and 2) the Assistant United States Attorney then assigned to the underlying criminal case. The Court finds it significant that the government did, indeed receive a copy of the § 2255 Motion, and has been operating under the assumption that that Motion was driving this case. The Court does not wish to hold Petitioner liable for an apparent error that was not within his control.
The government has provided the Court with a copy of the § 2255 Motion.
Indeed, on January 24, 2003, the government filed a Notice of Intent to Rely on Rule 4 of the Rules Governing § 2255 Proceedings.
Strangely, the government has not received a copy of the § 3582 Motion. Therefore, the Court has the Motion that the government has not received, and the government has the Motion that the Court has not received.
The Court finds, in the interests of justice, that the § 2255 Motion is appropriately a part of this case. The Certificate of Service indicates that the § 2255 Motion was mailed on March 8, 2001. Thus, allowing three days for mailing, the Court will, nunc pro tunc, consider the § 2255 Motion as having been filed with this Court in the instant case on March 11, 2001 — within the one year statute of limitations set forth by § 2255.
However, the § 3582 Motion is not properly before the Court. The relief requested in the § 3582 Motion is the kind covered by § 2255. Specifically, Petitioner requests that the Court reduce his prison term and apply, retroactively, certain sentencing guidelines — both sentencing issues squarely within the purview of § 2255. Therefore, the Court construes the § 3582 Motion as one brought under 28 U.S.C. § 2255 (hereinafter "Petitioner's second § 2255 Motion). The Court finds that Petitioner's second § 2255 Motion is barred as untimely, given that it was filed more than one year after judgment became final, pursuant to § 2255.
Based upon the above, it is therefore
ORDERED that Petitioner's § 2255 Motion is deemed, nunc pro tunc, to have been filed on March 11, 2001 and will be filed and entered into the docket as such; it is further
ORDERED that Petitioner's § 3582 Motion is construed as one brought pursuant to 28 U.S.C. § 2255; it is further
ORDERED that Petitioner's second § 2255 Motion (the former § 3582 Motion) is DENIED as untimely and is DISMISSED; it is further
ORDERED that all deadlines currently in effect will remain in effect; it is further
ORDERED that the government respond only to Petitioner's § 2255 Motion, and not to the § 3582 Motion.
The Court will amend the docket to reflect that this case is brought pursuant to 28 U.S.C. § 2255, and will proceed under that statute and its accompanying rules.
SO ORDERED.