Espenesa v. United States ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM EPENESA, Case No.: 19cv2415 CAB (AGS) 12 Petitioner, 1) CONSTRUING PETITION FOR 13 v. WRIT OF HABEAS CORPUS AS MOTION TO VACATE, SET ASIDE 14 UNITED STATES OF AMERICA, OR CORRECT SENTENCE UNDER 15 Respondent. 28 U.S.C. § 2255; and (2) INFORMING PETITIONER OF 16 OPTIONS 17 18 On December 16, 2019, Petitioner, a prisoner currently incarcerated at the United 19 States Penitentiary and Victorville, California and proceeding pro se, filed a Petition for a 20 Writ of Habeas Corpus by a Person in State Custody in this Court pursuant to 28 U.S.C. 21 § 2254. Petitioner alleges his counsel in case no. 17cv1583 BEN was ineffective. (Pet., 22 ECF No. 1 at 5.) 23 Although the current action was filed as a Petition for a Writ of Habeas Corpus by 24 a Person in State Custody pursuant to 28 U.S.C. § 2254, because Petitioner is in federal 25 custody pursuant to a federal criminal conviction, the Court will construe it as a Motion 26 to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Pursuant to 27 Castro v. United States, 540 U.S. 375 (2003) the Court is required to give Petitioner the 28 1 following options prior to ruling on his § 2255 Motion and to inform Petitioner of the 2 consequences of choosing those options. 3 Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), the 4 opportunity to file successive motions under § 2255 is strictly limited. The AEDPA 5 amended 28 U.S.C. § 2255 by providing for a one-year limitation period for prisoners to 6 file motions under § 2255. The section states, in pertinent part: 7 A 1-year period of limitation shall apply to a motion under this section. The 8 limitation period shall run from the latest of— 9 (1) the date on which the judgment of conviction becomes final; 10 11 (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 12 States is removed, if the movant was prevented from making a motion by 13 such governmental action; 14 (3) the date on which the right asserted was initially recognized by 15 the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 16 17 (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 18 19 * * * 20 A second or successive motion must be certified as provided in 21 section 2244 by a panel of the appropriate court of appeals to contain-- 22 (1) newly discovered evidence that, if proven and viewed in light of 23 the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the 24 movant guilty of the offense; or 25 (2) a new rule of constitutional law, made retroactive to cases on 26 collateral review by the Supreme Court, that was previously unavailable 27 28 28 U.S.C.A. § 2255 (West Supp. 2003). 1 PETITIONER’S OPTIONS 2 Option 1: Consent in writing to this Court ruling on his Motion 3 Petitioner may inform the Court of his desire to have the Court construe his 4 Petition as a Motion under § 2255 and rule on the merits of his Motion. To do so, 5 Petitioner should file a pleading with this Court entitled: “Consent to recharacterization 6 of petition as motion under § 2255.” The Court will then proceed to rule on the merits of 7 the § 2255 Motion. 8 Option 2: Withdraw the instant Motion and file an all-inclusive § 2255 Motion 9 Petitioner may withdraw the instant Motion and refile an all-inclusive § 2255 10 Motion at a later date which contains all issues he wishes to raise. If Petitioner chooses 11 Option 2, he must file a pleading with this Court entitled: “Notice of Withdrawal of § 12 2255 Motion.” 13 CONSEQUENCES OF PETITIONER’S ACTIONS: 14 Consequences of selecting Option 1: If Petitioner elects to proceed to the merits of 15 his § 2255 Motion by filing a “Consent to recharacterization of petition as motion under 16 § 2255,” this Court will rule on Petitioner’s Motion. However, the Court cautions 17 Petitioner that if he chooses this option this would be his one opportunity to file a Motion 18 under § 2255 without being required to obtain permission from the court of appeals as set 19 forth above. 20 Consequences of selecting Option 2: If Petitioner elects to withdraw the instant 21 motion by filing a “Notice of Withdrawal of § 2255 Motion,” the Court will not rule on 22 the § 2255 Motion at this time. However, Petitioner will be permitted to include the 23 claims presented in the instant § 2255 Motion is an all-inclusive § 2255 Motion filed at a 24 later date. However, the Court cautions Petitioner that he must file the all-inclusive § 25 2255 Motion within the applicable statute of limitations set forth above. If Petitioner 26 fails to timely file his all-inclusive § 2255 Motion within the statute of limitations he will 27 be required to seek permission from the court of appeals as set forth above. 28 / / / 1 Based on the foregoing, and good cause appearing, the Court hereby NOTIFIES 2 || Petitioner of the options set forth above. Petitioner must reply to this Order no later 3 February 28, 2020, selecting one of the options set forth above. 4 IT IS SO ORDERED. 5 ||Dated: December 27, 2019 € □ 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28