                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 PRESTON PEARSON,

                Petitioner,

        v.                                                Civil Action No. 16-879 (RDM)

 UNITED STATES OF AMERICA,

                Respondent.


                           MEMORANDUM OPINION AND ORDER

       Upon review of Pearson’s pro se petition for a writ of habeas corpus filed pursuant to

28 U.S.C. § 2241, see Dkt. 1, and the United States’ response, see Dkt. 12, the Court has

determined that the petition, properly construed, falls under 28 U.S.C. § 2254. See Dkt. 5 at 3.

Before the Court construes the petition as arising under § 2254, however, it must inform Pearson

of some of the consequences that may result from this characterization and give him an

opportunity to withdraw or to amend his motion. Pending Pearson’s decision, which must be

communicated to the Court on or before November 3, 2016, the Court will hold further

proceedings in abeyance.

       The Court advises Pearson of the following restrictions on claims brought under § 2254:

       First, all claims brought under 28 U.S.C. § 2254 must be brought in a single motion.

Before a second or successive § 2254 motion is filed in district court, the U.S. Court of Appeals

for the District of Columbia Circuit must authorize the district court to consider the claim. See

28 U.S.C. § 2244(b)(3). More specifically, petitioner is advised that:

        (b)(1) A claim presented in a second or successive habeas corpus application under
               section 2254 that was presented in a prior application shall be dismissed.
           (2) A claim presented in a second or successive habeas corpus application under
               section 2254 that was not presented in a prior application shall be dismissed
               unless—

                       (A) the applicant shows that the claim relies on a new rule of
                       constitutional law, made retroactive to cases on collateral review by the
                       Supreme Court, that was previously unavailable; or

                       (B)    (i) the factual predicate for the claim could not have been
                              discovered previously through the exercise of due diligence; and

                              (ii) the facts underlying the claim, if proven and viewed in light of
                              the evidence as a whole, would be sufficient to establish by clear
                              and convincing evidence that, but for constitutional error, no
                              reasonable factfinder would have found the applicant guilty of the
                              underlying offense.

           (3) (A) Before a second or successive application permitted by this section is filed in
               the district court, the applicant shall move in the appropriate court of appeals for
               an order authorizing the district court to consider the application.

               (B) A motion in the court of appeals for an order authorizing the district court to
               consider a second or successive application shall be determined by a three-judge
               panel of the court of appeals.

               (C) The court of appeals may authorize the filing of a second or successive
               application only if it determines that the application makes a prima facie showing
               that the application satisfies the requirements of this subsection.

               (D) The court of appeals shall grant or deny the authorization to file a second or
               successive application not later than 30 days after the filing of the motion.

               (E) The grant or denial of an authorization by a court of appeals to file a second or
               successive application shall not be appealable and shall not be the subject of a
               petition for rehearing or for a writ of certiorari. . . .

28 U.S.C. § 2244(b).

       Second, there is a one-year period of limitation for a writ of habeas corpus brought under

§ 2254. See 28 U.S.C. § 2244(d)(1). The limitations period is tolled while properly filing direct

appeals and collateral relief petitions are pending. See 28 U.S.C. § 2244(d)(2). More

specifically, Pearson is advised as follows:



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       (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
              corpus by a person in custody pursuant to the judgment of a State court. The
              limitation period shall run from the latest of—

                       (A) the date on which the judgment became final by the conclusion of
                       direct review or the expiration of the time for seeking such review;

                       (B) the date on which the impediment to filing an application created by
                       State action in violation of the Constitution or laws of the United States is
                       removed, if the applicant was prevented from filing by such State action;

                       (C) the date on which the constitutional right asserted was initially
                       recognized by the Supreme Court, if the right has been newly recognized
                       by the Supreme Court and made retroactively applicable to cases on
                       collateral review; or

                       (D) the date on which the factual predicate of the claim or claims
                       presented could have been discovered through the exercise of due
                       diligence.

          (2) The time during which a properly filed application for State post-conviction or
              other collateral review with respect to the pertinent judgment or claim is pending
              shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Pearson is advised that his application for a writ of habeas corpus under

§ 2254 will be subject to the restrictions of § 2244.

        With these considerations in mind, Pearson may withdraw or amend his pleading on or

before November 3, 2016. If the Court does not receive Pearson’s response on or before that

date, the Court will treat the petition as a motion filed under 28 U.S.C. § 2254, and thus as a

motion subject to the rules discussed above. In addition, the petition would be subject to the

limitation of this Court’s jurisdiction as stated in the Court’s Order of May 20, 2016. See Dkt. 5.

The clerk is directed to mail a copy of both this Order and the Order of May, 2016, to Pearson at

his address reflected in Docket 11.




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       If this Court treats Pearson’s motion as a § 2254 motion, the Court will issue an Order

directing the United States to respond to the motion within 60 days.

       SO ORDERED.



                                                    /s/ Randolph D. Moss
                                                    RANDOLPH D. MOSS
                                                    United States District Judge
Date: October 3, 2016




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