The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING PETITIONER'S REQUEST NOT TO CONSTRUE PETITION AS A 28 U.S.C. § 2255 MOTION [Doc. Nos. 174 & 175]
Petitioner Arif Durrani has filed a variety of challenges to his federal conviction. The current matter arises from a pleading captioned as a "Petition for Writ of Habeas Corpus/Error Pursuant to 28 U.S.C. § 2241: Immediate Release" that he filed in the Central District of California in 2006. The Central District concluded the petition was incorrectly labeled, and re-characterized it as a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. The Central District transferred the motion to vacate to this District, where it was filed and docketed as a § 2255 motion on August 20, 2008.
Petitioner opposes the recharacterization of his petition and challenges the absence of a warning in compliance with United States v. Castro, 540 U.S. 375 (2003). In Castro, the Supreme Court held that before recharacterizing a pro se filing as a motion to vacate, the district court must notify prisoner of its intent, advise him of the restrictions against second motions to vacate, and provide him with an opportunity to withdraw his motion or to amend it to raise all the claims he believes he has in one timely § 2255 motion. Id. at 377 & 382.
For the reasons stated below, the court finds that this petition is properly treated as one under § 2255, and not § 2241. The court treats Petitioner's objection to the transfer as a request to withdraw the motion to vacate. In any event, because Petitioner's appeal of the denial of his new trial motion is pending before the Ninth Circuit Court of Appeals, dismissal without prejudice would be an appropriate disposition. While this motion does not count as a "first" § 2255, the one year statute of limitations for filing such an attack on the underlying criminal conviction began to run on November 3, 2008.
In 2006, a jury convicted Petitioner of violating the Arms Export Control Act relative to several shipments of military aircraft components between June 2003 and January 2005. This court imposed a custodial sentence of 150 months. Petitioner's counsel promptly appealed the criminal judgment, but Petitioner also began a series of pro per filings in several courts. [Doc. No. 129; e.g., Doc. Nos. 138 to 144] Thus, the procedural history is complex.
Two months after his conviction, on August 28, 2006, Petitioner signed and dated the instant § 2241 petition and submitted it to the Central District of California, where he was incarcerated. [Case No. 06-CV-6281-PA] The Central District lodged the § 2241 petition on September 25, 2006, then filed it on October 2, 2006. On October 16, 2006, Petitioner filed a supplemental brief that amended his petition. During this time, Ninth Circuit had jurisdiction over the direct criminal appeal.*fn1
Two years later, on August 12, 2008, the Central District evaluated the petition and determined that it should be construed as a § 2255 motion because it challenged the legality of the criminal proceedings in this court.*fn2 Order Directing Clerk to Transfer Petition to the U.S. District Court for S.D. Calif. [Doc. No. 174] The Central District found that it did not have jurisdiction over the § 2255 motion because Petitioner had been sentenced in the Southern District. The court ordered the Clerk to transfer the petition to this District.*fn3
As stated above, the transferred petition was docketed in this District in August as a motion to vacate sentence under § 2255 and assigned a civil case number. Petitioner objected to the recharacterization of his petition and to the transfer from the Central District. [Doc. No. 176]
B. Appeal of New Trial Motion Pending in Ninth Circuit
Also while the direct appeal was pending, in December 2007, Petitioner submitted a pro se motion for a new trial. Fed. R. Crim. P. 33. [Doc. No. 165] The court rejected the Rule 33 motion because of the pending appeal and the Clerk returned the document to Petitioner. Petitioner filed a notice of appeal from the discrepancy order that rejected the new trial motion for lack of jurisdiction and that appeal is currently pending in the Ninth Circuit Court of Appeal. [Case No. 08-50007] The docket indicates that the case is ready for calendaring, thus, it is likely that the Ninth Circuit will resolve the appeal soon.
A Rule 33 new trial motion does not toll the statute of limitations for filing a § 2255 motion. Barnes v. United States, 437 F.3d 1074, 1077-78 (11th Cir. 2006) (per curiam); Trenkler ...