UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 15-cr-20314 

v Honorable Thomas L. Ludington 

SAMUEL LEE CURNEY, 

 

Defendant. 

__________________________________________/ 

ORDER PROVIDING DEFENDANT CURNEY WITH NOTICE THAT HIS RULE 52(B) 

MOTION WILL BE CONSTRUED AS A MOTION PURSUANT TO 28 U.S.C. § 2255, 

AND DIRECTING DEFENDANT TO INFORM THE COURT WHETHER HE AGREES 

OR DISAGREES WITH THIS RECHARACTERIZATION 

 On May 27, 2015 an indictment was issued charging Defendant Samuel Lee Curney with 

one count of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Curney pled guilty to 

the charge, and was sentenced to 140 months of imprisonment on November 5, 2015. Judgment 

was entered in November 12, 2015. See ECF No. 19. 

 On September 20, 2016 Defendant Curney filed a motion to supplement pursuant to Rule 

15(a) of the Federal Rules of Civil Procedure. See ECF No. 21. Defendant contended in his 

motion that he was seeking to supplement a pending motion under Federal Rule of Criminal 

Procedure 52(b), but there was no such filing on the Court’s docket, and thus nothing to 

supplement. Defendant’s motion was therefore denied without prejudice by an order dated 

September 29, 2016. See ECF No. 22. 

 In response, on October 31, 2016 Defendant Curney filed a motion purportedly seeking 

relief pursuant to Federal Rule of Criminal Procedure 52(b). In this motion, Defendant argues 

that the collateral attack waiver found in his plea agreement is unenforceable, that his trial 

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counsel was ineffective, and that he was wrongfully sentenced as a career offender. Because the 

motion challenges his underlying conviction and sentence, he seeks the remedy provided for by a 

petition for habeas relief pursuant to 28 U.S.C. § 2255. 

 In an accompanying notice of supplement, Defendant Curney states that his pending Rule 

52(b) motion may be construed as a motion under § 2255. See ECF No. 24. However, to ensure 

that Defendant is fully aware of his rights, the Court hereby provides Defendant with notice 

pursuant to Castro v. United States, 540 U.S. 375 (2003), that it intends to treat his Rule 52(b) 

motion as a motion for habeas relief pursuant to 28 U.S.C. § 2255. Defendant will be given 30 

days to notify the Court whether he agrees or disagrees with the Court treating his motion as a 

petition for habeas relief. 

Before making this decision, Defendant should consider that if the Court treats this 

motion as one brought pursuant to § 2255, it will be his first § 2255 petition. This is important 

because he can then only file a second or successive § 2255 petition upon the certification of the 

United States Court of Appeals for the Sixth Circuit. Moreover, in determining whether he 

agrees or disagrees with the Court treating his motion as one for habeas relief, Defendant should 

consider that the law imposes a one-year statute of limitations on the right to bring a motion 

pursuant to § 2255. This one-year period begins to run at the latest of: 

1. the date on which the judgment of conviction became final; 

2. the date on which the impediment to making a motion created by 

governmental action in violation of the Constitution or laws of the United 

States is removed, if the movant was prevented from making a motion by such 

governmental action; 

3. the date on which the right asserted was initially recognized by the Supreme 

Court, if that right has been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or 

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4. the date on which the facts supporting the claim or claims presented could 

have been discovered through the exercise of due diligence. 

28 U.S.C. § 2255(f). 

If Defendant disagrees with the Court treating his motion as a petition for habeas relief, 

he may withdraw his motion. Alternatively, he may seek to amend his motion. If Defendant fails 

to respond to this Order or agrees to have the motion treated as one pursuant to § 2255, the Court 

will consider the motion pursuant to § 2255 and shall consider it filed as of October 31, 2016, or 

the date the original motion was filed. Furthermore, if Defendant agrees to have the motion 

considered as one filed pursuant to § 2255, the Court will, upon motion of the Defendant, allow 

additional time for the filing of an amendment to the motion, to the extent that such an 

amendment would be permitted by law. 

 Accordingly, it is ORDERED that Defendant Curney is DIRECTED to inform the 

Court as to whether he agrees or disagrees with the recharacterization of his Rule 52(b) motion 

as a motion to vacate his sentence under 28 U.S.C. § 2255 on or before December 21, 2016. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: November 15, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 15, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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