Opinion
Case No. CR-00-539 (FB).
March 1, 2007
For the United States of America: ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, Eastern District of New York, By: ELIZABETH A. LATIF, ESQ., Brooklyn, NY.
For the Defendant: DEXTER WALLACE, Pro Se, Reg. No. 58561-053, Oakdale, LA.
MEMORANDUM AND ORDER
Proceeding pro se, defendant Dexter Wallace ("Wallace") moves to withdraw his guilty plea on the grounds that (1)" counsel mis-informed him of the direct consequences of the underlying federal deportation proceedings, before pleading guilty"; and (2) "the trial court failed to admonish [him] of the direct consequences of the on-going Federal Deportation proceedings when [he] plead[ed] guilty," resulting in a plea that was "[i]nvoluntary, unintelligent and unknowing." Def.'s Mot. to Withdraw Plea of Guilty at 4, 9, 12.
Page numbers refer to defendant's pagination, which labels the first page as "4."
Pursuant to the Federal Rules of Criminal Procedure, "[a]fter the court imposes sentence, the defendant may not withdraw a plea of guilty . . . and the plea may be set aside only on direct appeal or collateral attack." Fed.R.Crim.P. 11(e). A review of the docket sheet reveals: (1) Wallace pleaded guilty to a single-count violation of 18 U.S.C. § 1029(a)(3) on September 8, 2000, see Docket Entry #16 (Calendar Entry); (2) the Court entered a judgment of conviction and sentence on April 11, 2001, see Docket Entry #20 (Judgment); and (3) Wallace did not file a direct appeal. Accordingly, Wallace's motion can only be characterized as a collateral attack of his sentence pursuant to 28 U.S.C. § 2255.
In accordance with the Supreme Court's decision in Castro v. United States, 540 U.S. 375 (2003), the Court hereby (1) advises Wallace of its intent to recharacterize his motion as a § 2255 motion; (2) warns Wallace that if his motion is recharacterized, any subsequent § 2255 motion would have to be certified pursuant to 28 U.S.C. § 2255 ¶ 8 by a panel of the Second Circuit Court of Appeals to contain (a) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found Wallace guilty of the offense, or (b) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; and (3) grants Wallace 30 days from the issuance of this order to withdraw, or to amend, the present motion. See id. at 377.
If Wallace does not respond, the Court will treat his motion as a § 2255 motion and adjudicate it accordingly.