United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is Defendant's Motion/Letter to Rescind.
(Doc.116) (“Motion”).Defendant is incarcerated and
proceeding pro se. He asks the Court to modify his
sentence to accurately reflect the terms of his plea
agreement. However, Defendant does not want the Motion
construed as a motion to correct sentence under 28 U.S.C.
§ 2255. Because § 2255 is the only avenue for
relief, the Court will deny the Motion without prejudice.
June 6, 2013, Defendant pled guilty to interfering with
interstate commerce by robbery in violation 18 U.S.C. §
1951(a). (Doc. 96). Under the plea agreement, the parties
stipulated that Defendant's sentence would be 120 months.
Id. at ¶ 9. The agreement further states:
“the United States does not oppose the service of the
sentence in the instant case concurrently with any remaining
sentence in CR-200603134 as well as the discharged sentence
in CR 11-1176.” Id. at ¶ 9(b). On August 9,
2013, the Court (Hon. Scott Skavdahl) entered judgment on
Defendant's conviction and sentence (the
“Judgment”). (Doc. 102). The Judgment provides
that the 120 month sentence will run concurrent with
Defendant's state sentence in case no. D-202-CR-20060313
but does not mention 11-CR-1176. (Doc. 102). No appeal was
filed. Defendant's conviction therefore became final on
August 26, 2013, the first business day following the
expiration of the 14-day appeal period. See United States
v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006);
U.S. v. Garcia-Roman, 466 Fed.App'x 750, 751
(10th Cir. 2012).
filed the instant Motion on May 15, 2017. (Doc. 116). He
argues his 120-month sentence is inconsistent with the plea
agreement. Specifically, Defendant points out that the plea
agreement contemplates that his robbery sentence would run
concurrent with his discharged federal sentence in
11-CR-1176, but the Judgment only references his state
sentence in case no. D-202-CR-200603134. The Motion was
initially docketed as a habeas petition under 28 U.S.C.
§ 2241. However, Defendant is not challenging how his
sentence is being executed, but rather the validity of the
sentence itself, as it allegedly violates the plea agreement.
By a Memorandum Opinion and Order entered June 9, 2017 (Doc.
118), the Court therefore gave notice that it intended to
construe the Motion as a motion to modify his sentence under
§ 2255. See Castro v. United States, 540 U.S.
375, 383 (2003) (advising district courts to notify pro
se plaintiffs that it intends to recharacterize a
pleading as a first § 2255 motion). The Court also
required Defendant to show cause why such motion should not
be dismissed as untimely, as it was filed nearly three years
after the Judgment became final. See U.S. v.
McGaughy, 670 F.3d 1149, 1152 n. 1 (10th Cir. 2012)
(Motions under § 2255 must generally be filed within one
year after the defendant's conviction becomes final).
response, Defendant “ask[ed] the Court to
‘NOT' construe this letter, or the last letter, as
a  U.S.C. § 2255 Motion to Correct or Vacate
Sentence.” (Doc. 119). Instead, Defendant
“ask[ed] only that it be taken as a request to correct
my Judgment and Commitment and to reflect my plea.”
Id. A subsequent letter reiterates Defendant's
desire “to have [his] judgment and commitment reflect
[his] plea agreement.” (Doc. 120).
“The exclusive remedy for testing the validity of a
judgment and sentence, unless it is inadequate or
ineffective, is that provided for in 28 U.S.C. §
2255.” Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996) (internal quotations omitted). See also
U.S. v. Suarez, 244 Fed.App'x 921, 924 (10th Cir.
2007) (concluding that § 2255 is the exclusive vehicle
for modifying a federal sentence, except where 18 U.S.C.
§ 3582 allows a downward adjustment based on a change by
the Sentencing Commission); McIntosh v. U.S. Parole
Com'n , 115 F.3d 809, 811 (10th Cir. 1997) (holding
that 28 U.S.C. § 2255 is the proper vehicle for
“collaterally attack the validity of a conviction and
sentence”). Section 2255 therefore provides the only
remedy where, as here, the federal judgment or sentence
allegedly conflicts with the plea agreement. See U.S. v.
McAllister, 608 Fed.App'x 631, 633 (10th Cir. 2015)
(using § 2255 to analyze the defendant's claim that
the government breached the plea agreement during
sentencing); Nichols v. United States, 474
Fed.App'x. 854, 855-56 (3rd Cir. 2012) (claims relating
to the plea agreement that would require invalidation of the
underlying conviction or sentence must generally be raised in
a § 2255 motion).
a federal court generally cannot analyze a pro se
litigant's claims under § 2255 against their will.
See Castro v. United States, 540 U.S. 375, 383
(2003) (“A federal court cannot recharacterize a
pro se litigant's motion as a first § 2255
motion unless it first informs the litigant of its intent to
recharacterize, ” warns the litigant about the
consequences” and “provides the litigant an
opportunity to withdraw the motion or to amend it”).
When a petitioner opposes recharacterization under §
2255 but demonstrates no other authority for the claim,
courts typically deny the motion without prejudice. See,
e.g., U.S. v. Reese, 2008 WL 4610037, * 1 (W.D. N.C.
Oct. 16, 2008) (dismissing letter-motion where “the
defendant advised the Court not to treat his claim as a
motion under § 2255”); United States v.
Trudeau, 2016 WL 591754, * 5 n. 4 (D. Conn.
Feb. 11, 2016) (“[T]he court will honor Trudeau's
request that his Motion … not be construed as a
section 2255 motion.”).
Court will therefore honor Plaintiff's wishes not to
construe the Motion under § 2255, but will deny the
Motion without prejudice as no other statute justifies the
requested relief. If Defendant changes his mind and decides
to seek relief under § 2255 at a later time, that motion
will not be considered second or successive.
THEREFORE ORDERED that the Motion/Letter to Rescind (Doc.116)
is DENIED without prejudice.
FURTHER ORDERED that the Clerk's Office is directed to
change the docket text associated with Doc. 116 from
“Motion to Vacate Under 28 U.S.C. § 2255 by Joel
Rodriguez” to “Motion/Letter to Rescind.”
 Unless otherwise noted, all further
references are to documents filed in criminal case no.