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.
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).
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
Court will therefore honor Plaintiffs 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.