USA v. Womochil et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 23-CR-10115-2-JWB
DENISE RENEE SANDMANN,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for leave to file an appeal out of time
and the government’s motion to construe Defendant’s motion as one filed under 28 U.S.C. § 2255.
(Docs. 135, 137.) 	The government’s motion (Doc. 137) to construe Defendant’s motion as a
§ 2255 	motion 	is 	GRANTED. 	Defendant’s 	motion 	(Doc. 	135) 	is 	TAKEN 	UNDER
ADVISEMENT pending Defendant’s decision whether to file a supplemental § 2255 brief or
withdraw her motion.
Defendant seeks to appeal out of time because she alleges that her counsel failed to file a
notice of appeal within the time required by statute. (Doc. 135 at 1-2.) Defendant alleges that she
repeatedly tried to contact her counsel but was unable to do so. (Id. at 1.) Therefore, she requests
this court’s permission to file an appeal out of time. 	(Id.) 	Defendant casts her claim as one of
ineffective assistance of counsel. (Id.) The government asserts the allegations require the court to
recharacterize Defendant’s motion as one under § 2255. 	(Doc. 137 at 2.) 	The court agrees, as
§ 2255 is a way to challenge a sentence based on ineffective assistance of counsel. 	Ineffective
assistance of counsel is a federal basis for relief premised on the Sixth Amendment. See Strickland
v. Washington, 466 U.S. 668 (1984). Accordingly, “regardless of how a movant characterizes a
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post-judgment motion, it must be treated as a § 2255 motion if it ‘asserts or reasserts a federal
basis for relief’ from the movant's conviction or sentence.” United States v. Sears, 836 F. App’x.
697, 699 (10th Cir. 2020) (quoting In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009)).
Section 2255 of Title 28 of the United States Code allows a prisoner in custody under a
federal sentence to file a motion to vacate, set aside, or correct a sentence imposed in violation of
the Constitution or laws of the United States. After a defendant’s criminal conviction has become
final, a defendant's exclusive remedy for challenging his sentence is under § 2255, unless that
remedy is shown to be inadequate or ineffective. See United States v. McIntyre, 313 F. App'x 160,
162 (10th Cir. 2009). 	Due to certain limitations on the filing of § 2255 motions, the Supreme
Court has held that if a pro se federal prisoner has not previously filed a § 2255 petition – and
Defendant has not previously filed one – the court should not recharacterize a filing as a § 2255
petition unless the court “informs the litigant of its intent to recharacterize, warns the litigant that
the recharacterization will subject subsequent § 2255 motions to the law's ‘second or successive’
restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing.”
Castro v. United States, 540 U.S. 375, 377 (2003).
The court will construe Defendant’s motion as one seeking relief under § 2255 and give
Defendant 30 days to either file a supplemental brief providing all of her potential grounds for
relief or withdraw her motion. If Defendant chooses to file a supplemental brief the government
shall be allotted 30 days to respond. As a consequence, the government’s existing motion for an
extension of time to file a response to Defendant’s motion (Doc. 138) is DENIED as moot.
As a result of the foregoing, the government’s motion to construe Defendant’s motion
(Doc. 137) is GRANTED and Defendant’s motion for leave to file an appeal out of time is TAKEN
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UNDER ADVISEMENT while Defendant decides whether to file a supplemental brief or
withdraw her motion.
IT IS SO ORDERED. Dated this 14th day of November, 2025.
s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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