Opinion
No. CIV-05-0832 JC/RLP, CR-99-828 JC.
August 9, 2005
ORDER
This matter is before the Court on Defendant's motion to waive probation (CR Doc. 135) filed April 18, 2005, and his Petition for Writ of Habeas Corpus Pursuant to 18 U.S.C. § 2241 (CV Doc. #1; CR Doc. #136) filed July 29, 2005. The motion to waive probation alleges that certain charges have been dropped and Defendant has served the prison time that was imposed. In the habeas corpus petition Defendant contends that his conviction and sentence for violation of supervised release are illegal and should be set aside.
The motion to waive probation must be denied as a jurisdictional matter. After a judgment of conviction is entered, the Court's authority to modify a sentence is limited to specific statutory authorization. United States v. Soto-Holguin, 163 F.3d 1217, 1220 (10th Cir. 1999); United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997); United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997); United States v. Blackwell, 81 F.3d 945, 947-49 (10th Cir. 1996).
When a "motion for sentence reduction is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on 18 U.S.C. § 3582(c)." Section 3582(c) allows the court to modify a sentence in only three limited circumstances, including: 1) on motion of the Director of the Bureau of Prisons if special circumstances exist; 2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or 3) if the sentencing range is subsequently lowered by the Sentencing Commission.United States vs. Garcia-Emanuel, No. 04-5030, 2004 WL 2352111, at **2 (10th Cir. Oct. 20, 2004). Defendant's motion is not brought under any of the applicable statutory provisions and will be denied.
Defendant's petition under § 2241 may not not serve to challenge his conviction or sentence. The terms of § 2255 provide the exclusive avenue for an attack on a federal criminal conviction or sentence. See Baker v. Sheriff of Santa Fe County, 477 F.2d 118, 119 (10th Cir. 1973); Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (§ 2255 "supplants habeas corpus"). The relief that Defendant seeks, if available, is expressly contemplated by, and may only be sought under, § 2255, which applies where "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255.
Defendant argues that § 2241 provides an appropriate remedy in this case. He asserts that § 2255 is "inadequate or ineffective," Williams, 323 F.2d at 673 (10th Cir. 1963), because his motion would be barred by the statute of limitations and the prohibition of second or successive motions. "However, the fact that section 2255 is no longer available does not mean that the federal remedies available at one point were not adequate or effective, it merely means that [Defendant] did not pursue them in a timely manner." Braun v. Gallegos, No. 02-1292, 2002 WL 31895074, at **1 (10th Cir. Dec. 31, 2002) (citing Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000)). Defendant's claims must be brought under § 2255.
In this circumstance, "`district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.'" Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998), quoted in United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000)). The Court finds that Defendant's motion should be considered as made under § 2255, notwithstanding its designation as a habeas corpus petition, because of the nature of the relief sought. In light of the ruling in United States v. Kelly, the Court notes that a one-year statute of limitations applies to § 2255 motions and, if Defendant pursues the motion under § 2255, he may be barred from filing subsequent § 2255 motions. If Defendant does not withdraw the motion, the Court may dismiss the motion or recharacterize and consider it as a motion under 28 U.S.C. § 2255.
IT IS THEREFORE ORDERED that Defendant's motion to waive probation (CR Doc. 135) filed April 18, 2005, is DENIED;
IT IS FURTHER ORDERED that Defendant is hereby NOTIFIED that, within twenty (20) days from entry of this order, he may withdraw his Petition for Writ of Habeas Corpus Pursuant to 18 U.S.C. § 2241 or notify the Court in writing that he agrees to have the document recharacterized and considered as a motion under 28 U.S.C. § 2255.