United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter comes before the Court on movant Richard DeCaro's
motion to clarify filing status, in which he seeks to have
his original motion filed as an independent action under the
Holloway Doctrine. (Docket No. 3). For the reasons discussed
below, the motion will be denied.
April 16, 2019, movant filed a "Motion to Vacate,
Correct, and Reduce Sentence" by placing it in his
institution's mailing system. (Docket No. 1). Movant
requested "that this Court vacate, correct and reduce
his sentence" because it was "imposed in violation
of the Ex Post Facto Clause of the United States
Constitution." Due to this violation, movant urged the
Court to impose the "constitutionally correct
sentence," which would result in his immediate release
from prison. The motion was construed as a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. §
2255. On April 29, 2019, the Court denied and dismissed
movant's motion as successive. (Docket No. 5).
has now filed a motion to clarify filing status. In the
motion, he requests that the Court refile his original motion
"as an independent action under the Holloway
Doctrine," and not under 28 U.S.C. § 2255.
asserts that the basis of his motion is United States v.
Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014), not 28
U.S.C. § 2255. He further states that Holloway
constitutes an independent ground for attacking his sentence
in United States v. DeCaro, No. 1:96-cr-00005-SNL
(E.D. Mo. June 21, 1996). (Docket No. 3).
Holloway, the petitioner filed a motion to reopen
his § 2255 proceedings. Holloway, 68 F.Supp.3d
at 312. The district court recognized its lack of authority
to grant the motion, and asked the United States Attorney to
consider agreeing to an order vacating some of the
petitioner's convictions, based on his efforts at
rehabilitation. Id. at 314-15. The United States
Attorney agreed to vacate two convictions and allow the
petitioner to be resentenced. Id. at 315-16.
argues that Holloway stands for the proposition that
"district courts have the discretion...to subsequently
reduce a defendant's sentence in the interest of
fairness, even after all appeals and collateral attacks have
been exhausted." (Docket No. 1 at 1-2). The Court
disagrees with this assertion.
district court in Holloway did not rely on its own
discretion to reduce the petitioner's sentence; rather,
it was the prosecutor's decision to vacate two of the
petitioner's convictions that allowed for resentencing.
Holloway, 68 F.Supp.3d at 311. Contrary to
movant's contention, the ability of a district court to
modify a sentence is limited. See 18 U.S.C. §
3582. Indeed, a "federal court generally may not modify
a term of imprisonment once it has been imposed."
Dillon v. United States, 560 U.S. 817, 819 (2010).
There are only three exceptions to this rule, which allows a
court to modify a term of imprisonment: (1) upon motion of
the Bureau of Prisons; (2) when expressly permitted by
statute; or (3) when the applicable sentencing range of the
United States Sentencing Guidelines has been amended and made
retroactive. 18 U.S.C. § 3582(c). None of those
provisions are invoked by movant or available here.
movant requests that the Court "vacate, correct, and
reduce his sentence which was imposed in violation of the Ex
Post Facto Clause of the United States Constitution thereby
imposing the constitutionally correct sentence resulting in
his immediate release from prison." (Docket No. 1 at 1).
This type of request is properly brought pursuant to a §
2255 motion. See 28 U.S.C. § 2255 (stating that
a federal prisoner "claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution...may move the court which imposed the
sentence to vacate, set aside, or correct the
instant motion, movant disclaims any reliance on § 2255
and attempts to retitle his original motion as a "Motion
to Reduce Sentence Pursuant to the Holloway Doctrine."
(Docket No. 3 at 2). Presumably, movant is seeking this
characterization in order to avoid dismissal as a successive
§ 2255 motion. However, movant cannot avoid the
requirement that he obtain authorization from the Court of
Appeals to file a successive § 2255 motion merely by
recharacterizing his action. See United States v.
Patton, 309 F.3d 1093, 1094 (8th Cir. 2002)
(stating that inmate could "not bypass the limitation on
successive habeas petitions" by claiming that his action
was actually under Fed.R.Civ.P. 12(b)(2)); Boyd v. United
States, 304 F.3d 813, 814 (8th Cir. 2002)
(remanding movant's Fed.R.Civ.P. 60(b) motion to the
district court for dismissal, "because it is, on its
face, a second or successive 28 U.S.C. § 2255
petition"); and United States v. Noske, 235
F.3d 405, 406 (8th Cir. 2000) (explaining that
§ 2255 was the appropriate means for movant to challenge
her sentence, and that a writ of coram nobis could not be
used to circumvent "the second or successive provisions
of § 2255").
relief movant seeks is properly brought pursuant to 28 U.S.C.
§ 2255, which is why the Court construed movant's
original motion as it did. Because his § 2255 motion was
successive and brought without authorization, it was
dismissed. (Docket No. 5). As discussed above, movant is not
allowed to circumvent the authorization requirement simply by
claiming that Holloway provides him an independent
means of attacking his sentence. Therefore, movant's
instant motion to clarify filing status and to refile as an
independent action must be denied.
IT IS HEREBY ORDERED that movant's
motion to clarify filing status and to refile as an