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Curran v. United States

United States District Court, District of Maryland

November 10, 2014

JOHN F. CURRAN, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. RDB-11-687

MEMORANDUM OPINION

RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

This Court is in receipt of pro se prisoner John F. Curran (“Mr. Curran”)’s Motion to Vacate Conviction in Accordance with Rule 52(b) of the Federal Rules of Criminal Procedure (ECF No. 143). On October 31, 2014, this Court notified Mr. Curran that the pending Motion to Vacate Conviction is properly construed under 28 U.S.C. § 2255 as a Motion to Vacate, Set Aside, or Correct (ECF No. 165). Pursuant to the notification requirement of Castro v. United States, 540 U.S. 375, 383 (2003), Mr. Curran could withdraw his motion, amend it to include all § 2255 claims, or proceed with the motion as filed. See Mem. Op., 2, ECF No. 164. In response, Mr. Curran asked this Court to consider the pending Motion under Rule 52(b) of the Federal Rules of Civil Procedure, and not 28 U.S.C. § 2255 (ECF No. 166). For the following reasons, the Motion to Vacate Conviction in Accordance with Rule 52(b) of the Federal Rules of Criminal Procdure (ECF No. 143) is DENIED.

Rule 52(b) of the Federal Rules of Criminal Procedure provides for the vacatur of convictions if the conviction was the result of “plain error.” See United States v. Frady, 456 U.S. 152, 163-164 (1982). The circumstances under which relief is granted are very narrow. In fact, the trial must be “infected with error so “plain” [and] the trial judge and prosecutor were derelict in countenancing it[.]” Id. at 163. This relief, however, is intended to be immediate, thus the “plain error” standard of Rule 52(b) is available only on direct appeal. Id. at 164. Direct review and collateral review are entirely separate so as to preserve the finality of judgment. See Id . at 164-65; see also United States v. Addonizio, 442 U.S. 178, 184-85 (1979); Hill v. United States, 368 U.S. 424, 428-29 (1962).

In this case, the United States Court of Appeals for the Fourth Circuit dismissed Mr. Curran’s appeal of his conviction on August 29, 2014 (ECF No. 147). The Fourth Circuit then denied his petition for rehearing and rehearing en banc (ECF No. 151). The pending Motion is a collateral challenge to Mr. Curran’s conviction, thereby precluding this Court from considering the conviction under the “plain error” standard of Rule 52(b). Mr. Curran is free to file a proper 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence within the one-year statute of limitations set forth by 28 U.S.C. § 2255(f).[1] This Motion to Vacate Conviction in Accordance with Rule 52(b) of the Federal Rules of Criminal Procedure (ECF No. 143), however, is DENIED.

A separate Order follows.


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