United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE
DISTRICT OF LOUISIANA
Thurman Ray Morris filed a Motion to Correct Sentence
(Doc. 311). Petitioner claims that he is entitled to
14 months credit for the time he spent in the Louisiana
Department of Corrections, as well as 12 months he spent in
Federal Custody, awaiting trial and sentencing, for a total
of 26 months. (Doc. 311 at p. 3).
July 1, 2015, Petitioner pled guilty to conspiring to
distribute and possess with intent to distribute cocaine and
cocaine base in violation of 21 U.S.C. § 846 and 18
U.S.C. § 2 and unlawful use of communication facilities
in violation of 21 U.S.C. § 843(b) and 18 U.S.C. §
2. (Doc. 138, 142). On December 18, 2015, the Court sentenced
Petitioner to 72 months on the conspiracy charge and 24
months on the unlawful use of communication facilities
charge, to run concurrently. (Doc. 264 at p. 3). At
sentencing, the Court indicated that Petitioner would be
awarded 12 or 14 months time served, for the time Petitioner
served in a state court matter. (Doc. 296-1 at p. 1:11-23).
The Judgement, however, provided that the Petitioner would be
credited 12 months, making his total sentence 60 months.
Id. Petitioner then filed a Motion to Amend Judgment
(Doc. 296), in which he argued that he served 14 months in
state custody, rather than the 12 months reflected in the
Court's Judgment. Id. The probation office
investigated the time Petitioner was in state custody. (Doc.
309). A typographical error was discovered in the database
used to determine Petitioner's time in state custody, and
a further review of the matter revealed that Petitioner,
should, in fact, be credit for 14 months instead of 12
months. Id. On June 26, 2017, the Court thereafter
entered an amended judgment reflecting this correction,
making Petitioner's total sentence 58 months. (Doc. 310
at p. 2).
than a month later, on July 13, 2017, Petitioner filed a
Motion to Correct his Sentence. (Doc. 310). Petitioner claims
that he is entitled to 14 months credit for the time he spent
in the Louisiana Department of Corrections, as well as 12
months he spent in Federal Custody, awaiting trial and
sentencing, for a total of 26 months. (Doc. 311).
styled his motion as a Motion to Correct his Sentence. (Doc.
311). Rule 35 of the Federal Rules of Criminal Procedure,
titled "Correcting or Reducing a Sentence",
provides that "[w]ithin 14 days after sentencing, the
court may correct a sentence that resulted from arithmetical,
technical, or other clear error." The Court is
well-beyond this 14-day limit.
Court must therefore construe Plaintiffs motion as a 28
U.S.C. § 2255 Motion to Vacate, Amend, Set Aside, or his
Correct Sentence. Because Petitioner did not indicate that
he intended to file a § 2255 motion, this Court is
required to give the warnings discussed by the United States
Supreme Court in Castro v. United States, 540 U.S.
375 (2003). In Castro, the Supreme Court held
that a district court should not recharacterize a pro
se post-conviction motion as a first § 2255 motion
absent notice and warning to the Petitioner as to the
consequences of that recharacterization. Id. at 383.
to Castro, Petitioner is advised that any §
2255 motion that he files in the future will be subject to
the restrictions imposed on second or successive motions. The
Court must give Petitioner the opportunity to withdraw the
motion or amend the recharacterized motion so that the motion
contains all of the grounds for relief that he believes are
available to him under § 2255.
Accordingly, IT IS ORDERED that within 21 days of this Order,
Petitioner either: (1) withdraw his Motion to Correct
Sentence (Doc. 311) that the Court has recharacterized as a
§ 2255 motion or; (2) file an amended motion on the
attached § 2255 form that includes all grounds for
relief that Petitioner believes are available to him. If the
motion is not withdrawn, Petitioner must file an amended
motion on the attached form even if he decides not to include
new or additional grounds for relief.
IS FURTHER ORDERED that failure to comply with this
Order may result in dismissal of this action under Federal
Rule of Civil Procedure 41(b) for failure to comply with a
IS FURTHER ADVISED that any subsequent § 2255
motion filed by him will be subject to the following
second or successive motion must be certified as provided in
section 2244 by a panel of the ...