Opinion
09-CV-6042L, 03-CR-6096L.
February 4, 2009
ORDER
Petitioner pro se Darryl Wilds has filed a petition pursuant to 28 U.S.C. § 2241 and requests, among other relief, appointment of counsel. The Court has carefully reviewed the claims in the petition, and finds that, despite petitioner's assertion that this is a proceeding under 28 U.S.C. § 2241, it is in fact a petition under § 2255. A motion under § 2255 is one "directed to the sentence as it was imposed, not to the manner in which it is being executed." See Dioguardi v. United States, 587 F.2d 572, 573 (2d Cir. 1978). In contrast, a motion under § 2241 challenges the execution, not the imposition, of the sentence. See Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997) (disregarding a prisoner's mislabelling of a § 2255 petition and instead look to the requested relief). Because the petition clearly challenges the sentence imposed, rather than the manner in which it is being executed, it clearly arises under § 2255.
The Court will not address petitioner's motion for in forma pauperis status at this time, because petitioner would not have to pay a fee to file a motion under 28 USC § 2255, as it is considered a motion in his criminal case.
With regards to 28 U.S.C. § 2255, this statute provides that a defendant may collaterally attack his sentence on the basis "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
The Second Circuit has cautioned district courts against converting mislabeled applications in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") § 106, 28 U.S.C. § 2244, which prohibits second or successive applications for the writ without the Circuit Court's permission. See Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (per curiam). As the Second Circuit has explained:
AEDPA places stringent limits on a prisoner's ability to bring a second or successive application for a writ of habeas corpus under either 28 U.S.C. § 2254 or § 2255. Second or successive applications may be heard only if they involve newly discovered evidence of a potentially dispositive nature, or a new and retroactive rule of constitutional law. See 28 U.S.C. §§ 2255, 2244(b). If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the movant's subsequent filing of a motion under § 2255 to be barred as a "second" § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated.
. . . 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 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, 155 F.3d at 583, 584.
Accordingly, Petitioner is hereby notified that the Court finds that the instant motion should be construed as a motion under 28 U.S.C. § 2255. Petitioner may withdraw or amend the petition if he does not wish to pursue relief under § 2255. Should Petitioner choose to withdraw or amend the petition, he must notify the Court in writing within thirty (30) days of receipt of this order. Before Petitioner decides to withdraw or amend the instant petition, the Court advises him that any motion or petition under § 2255 must be filed within the one-year statute of limitation period. If Petitioner fails to notify the Court within 30 days that he wishes to withdraw or amend this petition, it shall be adjudicated as a motion under § 2255.
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255.
Because it is not clear whether the petition will go forward, petitioner's request to proceed in forma pauperis is denied without prejudice at this time.