UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 13, 2011
UNITED STATES OF AMERICA,
MARIO ESPARZA-CRUZ, DEFENDANT/PETITIONER.
The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER RE: MOTION FOR RELIEF
Mario Esparza-Cruz pleaded guilty to importing methamphetamine, and the Court sentenced him to 75 months' imprisonment, followed by five years' supervised release. Esparza-Cruz then took an appeal, which was unsuccessful. After that, he filed a motion raising an issue not raised on appeal, i.e., that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The motion did not explain under what provision of law it was being brought, and was accepted via a discrepancy order that directed the clerk to docket it as a motion under 28 U.S.C. § 2255.
Although Esparza-Cruz's latest motion has been docketed as a § 2255 motion, it is unclear whether the Court should construe it as such before ruling on it. Before making a final decision on how to proceed, the Court is required to warn Esparza-Cruz and present him with several options. Castro v. United States, 540 U.S. 375, 382--83 (2003).
Here is the warning: Characterizing Esparza-Cruz's motion as a § 2255 motion means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions. See 28 U.S.C. § 2255(h). Specifically, the Supreme Court has explained:
Under a longstanding practice, a court sometimes treats as a request for habeas relief under 28 U.S.C. § 2255 a motion that a pro se federal prisoner has labeled differently. Such recharacterization can have serious consequences for the prisoner, for it subjects any subsequent motion under § 2255 to the restrictive conditions that federal law imposes upon a "second or successive" (but not upon a first) federal habeas motion. § 2255, ¶ 8.
Castro, 540 U.S. at 377.
Here are the options: By no later than Tuesday, June 17, 2011, Esparza-Cruz may either withdraw his motion, or amend it so that it contains all the § 2255 claims he believes he has. If Esparza-Cruz does neither of these within the time permitted, the Court will construe his motion as a § 2255 motion and rule on it accordingly.
IT IS SO ORDERED.
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