Opinion
No. 3-99-CR-236-D(02)
February 22, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Boniface Suleman Odiodio, appearing pro Se, has filed a Rule 35 motion for correction or reduction of sentence and a Rule 36 motion to correct clerical mistakes. The motion has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636 (b) and an order of reference dated February 19, 2002.
I.
A jury convicted petitioner of bank fraud, wire fraud, and money laundering. Punishment was assessed at 71 months confinement followed by supervised release for a period of five years. The trial court also ordered defendant to make restitution in the amount of $251,370.33. Defendant appealed his conviction and sentence. The Fifth Circuit reversed the bank fraud conviction, affirmed the other convictions, and remanded the case for resentencing. United States v. Odiodio, No. 99-11202 (5th Cir. Apr. 4, 2001). After a hearing on June 25, 2001, the trial court resentenced defendant to 71 months on the wire fraud and money laundering counts and reaffirmed the restitution order. Defendant duly perfected an appeal, which is currently pending in the Fifth Circuit. United States v. Odiodio, No. 01-10832.
Defendant now moves to correct his judgment pursuant to Rules 35 36 of the Federal Rules of Criminal Procedure. Succinctly stated, defendant contends that: (1) the restitution order contains a material error because it fails to account for $75,370.33 recovered by Wells Fargo Bank; (2) the prosecutor failed to disclose this material evidence to defendant; (3) the indictment fails to allege "a corpus delecti" or damage to the bank; and (4) the evidence was insufficient to support the restitution award. By way of "counterclaim or cross-claim," defendant sues the United States of America, Wells Fargo Bank, and Charles Schwab Corporation under a variety of theories for giving false testimony during his criminal trial.
II.
Rule 35(c) of the Federal Rules of Criminal Procedure allows a district court to "correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." FED. R. CRIM. P. 35 (c). However, the court is required to act within seven days after sentence is imposed. Id.; see also United States v. Gonzalez, 163 F.3d 255, 264 (5th Cir. 1998) (seven-day period runs from date sentence is orally pronounced). Here, defendant did not file his motion until February 11, 2002 — more than six months after he was resentenced. Accordingly, relief is no longer available under Rule 35(c).
Rule 35 also permits the correction or reduction of a sentence upon remand or if the defendant provides substantial assistance to the government. See FED. R. Civ. P. 35(a) (b). None of these situations are applicable here. Therefore, the Court concludes that defendant is seeking relief only under Rule 35(c).
III.
Defendant also seeks correction of the judgment under Rule 36 of the Federal Rules of Criminal Procedure. This rule authorizes the correction of "[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission." FED. R. CIUM. P. 36. However, this authority is limited. A court may not make substantive modifications to an orally pronounced sentence. United States v. DeMartino, 112 F.3d 75, 79 (2d Cir. 1997); United States v. Daddino, 5 F.3d 262, 265 (7th Cir. 1993). Rather, the rule is limited to mistakes resulting from inadvertence. See United States v. Steen, 55 F.3d 1022, 1025 (5th Cir.), cert. denied, 116 S.Ct. 577 (1995) (clerical error under Rule 36 is limited to "mindless and mechanistic mistakes" and "minor shifting of facts").
Defendant does not point to any clerical error or inadvertent omission in the judgment. Instead, he challenges the amount of restitution ordered by the trial court and accuses the prosecutor of withholding material evidence. Such claims cannot be raised in a Rule 36 motion.
In light of the claims raised by defendant in his pro se motion, the Court would be inclined to construe this pleading as a motion for post-conviction relief under 28 U.S.C. § 2255. However, defendant specifically states that he is not seeking section 2255 relief. (Def. Mot. at 1, ¶ 1). Moreover, a district court may not adjudicate the merits of a section 2255 motion while a direct appeal is pending. See Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988), cert. denied, 109 S.Ct. 2450 (1989). For these reasons, the Court declines to construe this pleading as anything other than a motion for correction of judgment under Rules 35 36.
IV.
By way of "counterclaim or cross-claim," defendant seeks damages against the federal government and other parties for giving false testimony during his criminal trial. A prisoner many not maintain a civil rights action based on the legality of a prior criminal proceeding unless a court has determined that the terms of his confinement are in fact invalid. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994); see also Stephenson v. Reno, 26 F.3d 26, 27 (5th Cir. 1994) (applying Heck to Bivens actions brought by federal prisoners). To date, no court has made such a determination. Defendant is therefore precluded from maintaining a civil rights action at this time.RECOMMENDATION
Defendant's Rule 35 motion for correction or reduction of sentence and Rule 36 motion to correct clerical mistakes should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of defendant's Rule 35 motion for correction or reduction of sentence and Rule 36 motion to correct clerical mistakes. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).