USA v. RAZO et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK RAZO, )
)
Petitioner, )
) 1:11-cr-00184-JAW-1
v. ) 1:16-cv-00183-JAW
)
UNITED STATES OF AMERICA, )
)
Respondent )
RECOMMENDED DECISION ON GOVERNMENT’S MOTION TO COMPLY
Petitioner Mark Razo requests, pursuant to 28 U.S.C. § 2255, that the Court vacate, set
aside or correct his sentence. (Motion, ECF No. 269.) Petitioner seeks relief pursuant to Johnson
v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). Counsel was appointed to represent Petitioner
as to the Johnson claim. (Order, ECF No. 270.)
The Government filed a “motion to comply” in which motion the Government requests the
Court, in accordance with Castro v. United States, 540 U.S. 375 (2003), inform Petitioner that his
“Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct
Sentence 28 U.S.C. § 2255” may be recharacterized as a first Motion to Vacate, Set Aside, and
Correct Sentence Pursuant to 28 U.S.C. § 2255, advise Petitioner that the recharacterization will
subject him to the provisions of section 2255 regarding second or successive challenges, and allow
Petitioner the opportunity to withdraw or amend his filing. (Motion, ECF No. 276.) The
Government suggests the request is appropriate because Petitioner filed his motion on a form
intended to be used when a request is made to the First Circuit for leave to file a second or
successive section 2255 motion, and because the Court docketed Petitioner’s motion as a second
motion under section 2255. Petitioner filed a pro se response stating that he intended his filing to
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be a first section 2255 motion. (Response, ECF No. 277.) Subsequently, Petitioner, through
counsel, filed a request for the Court to treat his pro se filing as a first section 2255 motion. (ECF
No. 278.)
In Castro, the Supreme Court wrote:
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. In light of these consequences, we hold
that the court cannot so recharacterize a pro se litigant’s motion as the litigant’s
first § 2255 motion 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. Where these things
are not done, a recharacterized motion will not count as a § 2255 motion for
purposes of applying § 2255’s “second or successive” provision.
540 U.S. at 377.1 The Supreme Court also explained that the reason for permitting a petitioner to
amend the motion is “so that it contains all the § 2255 claims he believes he has.” Id. at 383.
Although Petitioner is represented by counsel on his Johnson claim, which is the only claim
asserted to this point, Petitioner is unrepresented as to any non-Johnson claim he may have. If
Castro otherwise applies to Petitioner’s case, therefore, the relief requested by the Government
would be appropriate. Arguably, however, because Petitioner, proceeding pro se, informed the
Court that he intends for his motion to be considered a first section 2255 motion, Castro does not
apply. See Young v. United States, 2011 WL 5552893, at *1, 2011 U.S. Dist. Lexis 131867, at *3-
4 (S.D. Ohio Nov. 15, 2011) (holding that the court’s treatment of the petitioner’s filing was not
a recharacterization under Castro because the petitioner told the court he intended the filing to be
1 When Castro v. United States, 540 U.S. 375 (2003) was decided, what is now codified at 28 U.S.C. § 2255(h) was
codified at section 2255(8). The restrictions on second or successive motions thus now appear in section 2255(h) and
in 28 U.S.C. § 2244, which is referenced in section 2255(h).
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construed as a section 2255 motion). Regardless of whether the Castro warning is required, given
that Petitioner’s motion is clearly a first section 2255 motion and because Petitioner is pro se on
any potential non-Johnson claims he might have, the issuance of the Castro warning is reasonable.
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant the Government’s motion
(ECF No. 276) to comply, and advise Petitioner that (a) the Court has construed his pro se filing
(ECF No. 269) to be a first Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255; (b) the Court advise Petitioner that the recharacterization will subject him to the restrictions
that 28 U.S.C. § 2255 imposes on second or successive collateral challenges; and (c) the Court
permit Petitioner fourteen (14) days following the Court’s order to withdraw or supplement his
filing. 2 I also recommend the Court order the Government to answer Petitioner’s motion, or his
amended motion in the event Petitioner files an amended motion, within 45 days of the Court’s
order. Finally, if the Court adopts this recommendation, consistent with the Court’s intent to
recharacterize Petitioner’s filing as a first section 2255 motion, I recommend the Court grant
Petitioner’s motion (ECF No. 278) to construe his section 2255 motion as a first section 2255
motion.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, within fourteen (14) days of being served
with a copy thereof. A responsive memorandum shall be filed within fourteen (14)
days after the filing of the objection.
2 If Petitioner chooses to amend his motion, any new claims must be timely or must relate back to his initial section
2255 filing. See United States v. Miller, 2014 WL 3734212, at *2, 2014 U.S. Dist. Lexis 102124, at *5-6 (N.D. Ga.
July 28, 2014); Young v. United States, 2011 WL 5552893, at *1, 2011 U.S. Dist. Lexis 131867, at *3-5 (S.D. Ohio
Nov. 15, 2011). Withdrawal of the section 2255 motion is mentioned only because Castro, when applicable, requires
the Court to inform a petitioner that he may choose either to withdraw or to amend the section 2255 motion. Castro,
540 U.S. at 377. In this case, if Petitioner were to withdraw the motion, any subsequent filing may run into statute of
limitation issues with respect to the claim under Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). See 28
U.S.C. § 2255(f)(3).
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Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 6th day of July, 2016.
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