IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 7, 2012
UNITED STATES OF AMERICA, RESPONDENT,
JESS VERNON BRASIER, MOVANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his conviction for conspiring to manufacture marijuana. Movant is serving a sentence of 60 months imprisonment.
The pending motion is titled, "Petition for Order Directing Amendment to PreSentence Report (Rule 32 FR Crim. P.)" (Dkt. No. 107.) On September 21, 2011, the Honorable Lawrence K. Karlton construed the motion as a request for federal habeas corpus. (Dkt. No. 108.) Judge Karlton clearly construed movant's motion as having been brought pursuant to 28 U.S.C. § 2255.
Pursuant to Castro v. United States, 540 U.S. 375 (2003), a court must first warn the litigant about the consequences of recharacterizing a pleading as a § 2255 motion.
Accordingly, movant is informed that the recharacterization of his petition as a motion brought pursuant to 28 U.S.C. § 2255 may cause subsequent motions brought pursuant to 28 U.S.C. § 2255 to be subject to the restrictions on "second or successive" motions. Castro, 540 U.S. at 383.
If movant is opposed to the recharacterization of his motion, he is granted thirty days to withdraw his § 2255 motion or to amend it to contain all the § 2255 claims he believes he presently intends to assert. Id.
Accordingly, IT IS HEREBY ORDERED that movant is granted thirty days to inform the court whether he objects to the recharacterization of his motion as having been brought pursuant to 28 U.S.C. § 2255; if movant opposes this recharacterization, during that time he may either withdraw his motion or file an amended motion containing all of his § 2255 claims; if movant does not respond to this order, the court will deem the original motion submitted for decision; if movant files an amended motion, respondent's response to the amended motion is due within thirty days thereafter; movant may file a response to the reply thirty days thereafter.
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