Opinion
Case No. 03-40133-01-JAR
11-29-2017
UNITED STATES OF AMERICA, Plaintiff, v. LENARD TARKINGTON, Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Lenard Tarkington's pro se Motion to Reduce Sentence (Doc. 105). For the reasons explained in detail below, the Court gives Defendant notice of its intent to treat his motion as a request for habeas relief under 28 U.S.C. § 2255.
On February 5, 2007, Defendant pled guilty to armed bank robbery (Count 1), conspiracy to commit armed robbery (Count 3), and using and brandishing a firearm during and in relation to a federal crime of violence (Count 4). This Court sentenced Defendant to a total of 191 months' imprisonment. The Tenth Circuit Court of Appeals granted the government's motion to enforce the appeal waiver in the plea agreement and dismissed Defendant's appeal. Defendant now alleges that the decision of the United States Supreme Court in Dean v. United States retroactively entitles him to resentencing. In that case, the Court held that nothing in the statute setting mandatory minimum sentences for using or possessing a firearm in connection with a violent crime restricts the authority of sentencing courts to consider a sentence imposed under the mandatory minimum statute when calculating a just sentence for the predicate count.
Doc. 82.
Doc. 90.
Doc. 104.
137 S. Ct. 1170 (2017).
Id. at 1176-77.
Defendant does not mention the federal habeas statute—28 U.S.C. § 2255—in his motion. Nevertheless, because of the nature of the relief that Defendant seeks, the Court is inclined to treat his motion as a request for § 2255 habeas relief. Before doing so, however, the Court gives Defendant the opportunity to contest the recharacterization and to withdraw the motion. Defendant must be warned: if the Court takes this action, "any subsequent § 2255 motion will be subject to the restrictions on 'second or successive' motions." Defendant should therefore consider whether he has included all of the allegations he wishes to bring in a § 2255 motion, or whether he should amend the allegations that he has raised.
See 28 U.S.C. § 2255(f)(3) (contemplating relief from the underlying sentence based on a change in Supreme Court law).
See generally Castro v. United States, 540 U.S. 375, 381-83 (2003).
Id. at 383.
Unless Defendant files with the Court a notice of his desire not to have his motion treated as a § 2255 motion—thereby withdrawing the motion—on or before December 29, 2017, the Court will treat his motion as a request for § 2255 relief. Alternatively, Defendant may file a motion to amend his motion to explicitly set out his grounds for § 2255 relief no later than December 29, 2017. The Court directs the Clerk's Office to send Defendant a standard form for § 2255 motions he may use to amend his motion or refile later as a motion if he elects to withdraw his pending motion. If Defendant does not move to amend the motion or withdraw it altogether, the Court will construe the motion as a § 2255 motion and order the Government to respond. If the Court takes this action, any and all motions filed thereafter under § 2255 will be construed as successive, and can only be filed with permission of the Tenth Circuit Court of Appeals. If Defendant chooses to request to amend the motion under § 2255, he must include all claims that can be brought under 28 U.S.C. § 2255.
See United States v. Brockman, No. 09-20001-CM, 2010 WL 1489718, at *1 (D. Kan. Apr. 13, 2010) (citation omitted).
Id. --------
IT IS THEREFORE ORDERED BY THE COURT that on or before December 29, 2017, Defendant must file either (1) a motion to withdraw his currently pending motion to reduce sentence (Doc. 105) and a notice of his desire not to have his motion recharacterized as a request for § 2255 relief; or (2) a motion to amend his motion to include all claims that can be brought under 28 U.S.C. § 2255. If Defendant does not respond, the Court will treat the motion as a request for § 2255 relief.
IT IS FURTHER ORDERED THAT the Clerk's Office forward a copy of the § 2255 petition form to Defendant along with a copy of this order.
IT IS SO ORDERED.
Dated: November 29, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE