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DeSilva v. United States

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS ROCK ISLAND DIVISION


November 28, 2006

JOHN JOE DESILVA, SR., PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Joe Billy McDade United States District Judge

ORDER

Before the Court is Petitioner's Petition to Proceed In Forma Pauperis for a Petition for Writ of Error Coram Nobis. (Doc. 1.) The Petitioner pled guilty to conspiracy to distribute Marijuana and Interstate Communication of a Threat to Injure on June 6, 2005 and was sentenced to 51 months. Petitioner has now filed a Petition for Writ of Error.

A Petition for a Writ of Error Coram Nobis is "an extraordinary writ that is only available to correct errors of the most fundamental character." United States v. Lilly, 206 F.3d 756 (7th Cir. 2000). However, the substance of Petitioner's pro se motion challenges the two point enhancement which Petitioner received for Interstate Communication of a Threat to Injure. As a result, this Court should construe Petitioner's petition as a request for habeas relief under 28 U.S.C. § 2255. A Court may construe such a motion to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis, Hughes v. Rowe, 449 U.S. 5 (1980), or to avoid an unnecessary dismissal Castro v. United States, 540 U.S. 375 (2003).

However, a federal court cannot recharacterize a pro se litigant's motion as a first § 2255 motion unless the court "first informs the litigant of its intent to recharacterize, warns the litigant that this recharacterization means that any subsequent § 2255 motions will be subject to the restrictions on "second or successive" motions, and provides the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has." Castro, 540 U.S. at 383.

Accordingly, Petitioner is notified that this Court intends to recharacterize his Petition for a Writ of Error Coram Nobis as a request for habeas relief under 28 U.S.C. § 2255. Petitioner is thus warned that any subsequent § 2255 motions will be subject to the restrictions on "second or successive" motions. Petitioner is also GRANTED LEAVE to withdraw his current motion and within thirty days re-file a request for habeas relief under 28 U.S.C. § 2255. Otherwise, this Court will construe his current Petition as a Petition under § 2255.

ENTERED this 27th day of November, 2006.

20061128

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