IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
August 27, 2012
UNITED STATES OF AMERICA, PLAINTIFF,
MANUEL PUENTES-GARCIA, DEFENDANT.
The opinion of the court was delivered by: J. Phil Gilbert District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Manuel Puentes-Garcia's motion for downward departure under fast-track guidelines (Doc. 27). The Court believes that, although he did not cite it in his motion, defendant intends to invoke 28 U.S.C. § 2255 because the relief he seeks is only available through such a motion. However, the Court is hesitant to construe this as a § 2255 motion without a clear indication that defendant intends to invoke § 2255. "[T]he 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." Castro v. United States, 540 U.S. 375, 377 (2003).
The Court WARNS defendant that if he does not file a motion to withdraw his pending motion on or before September 10, 2012, the Court will construe it as a § 2255 motion and defendant will then be subject to the second or successive filing requirements contained in 28 U.S.C. § 2255, ¶ 8.
IT IS SO ORDERED.
J. Phil Gilbert
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