Opinion
15-CR-046-A
01-17-2018
UNITED STATES OF AMERICA, v. RAYMOND LEE, Defendant.
ORDER
The Defendant has filed a motion (Docket No. 46) for a sentence reduction pursuant to 18 U.S.C. § 3582(c). Section 3582(c) sets forth the general rule that a "court may not modify a term of imprisonment once it has been imposed except" in several limited circumstances, such as a relevant amendment to the U.S. Sentencing Guidelines or a motion from the Director of the Bureau of Prisons. The Defendant does not identify any § 3582(c) exception that might apply in this case, nor is any apparent. Thus, the Defendant's motion for a sentence reduction must be denied.
The Court is mindful of its obligation to liberally construe pleadings filed by pro se litigants. Doing so here, the Defendant's motion for a sentence reduction could be construed as a motion to vacate, reduce, or set aside a sentence pursuant to 28 U.S.C. § 2255, based on a claim of ineffective assistance of counsel.
A court, however, may "not convert a post-conviction motion into a § 2255 motion without first giving the prisoner notice of such proposed action, and giving the prisoner an opportunity to withdraw his § 2255 motion." Adams v. United States, 372 F.3d 132, 136 (2d Cir. 2004). The Defendant is therefore advised that, should he elect to convert his § 3582(c) motion into a § 2255 motion, and if that § 2255 motion is ultimately denied, he may be prohibited from filing a second § 2255 motion, except in certain limited circumstances. See Adams v. United States, 155 F.3d 582, 583-84 (2d Cir. 1998). In other words, if the Defendant elects to convert his § 3582(c) motion into a § 2255 motion, that decision "may result" in a "deprivation of a future opportunity to have a well-justified grievance adjudicated." Id. at 583.
The Clerk of Court shall mail a copy of this Order to the Defendant, together with a Motion to Vacate/Set Aside Sentence Under 28 U.S.C. § 2255 (AO Form 243). If the Defendant elects to convert his § 3582(c) motion into a § 2255 motion, he should complete the form § 2255 motion and return it to the Court within 45 days of the date of this Order. In his § 2255 motion, the Defendant should show cause why the motion should not be dismissed as untimely given that it was filed more than one year after his conviction became final. See 28 U.S.C. § 2255(f); Rivera v. United States, 448 Fed. App'x 145, 146 (2d Cir. 2011); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). If the Defendant elects to not convert his § 3582(c) motion into a § 2255 motion, he should notify the Court of that decision within 45 days of the date of this Order.
SO ORDERED.
Dated: January 17, 2018
Buffalo, New York
s/Richard J . Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE