Ultsch v. United States
- Vincent Briccetti
- 7:19-cv-10703
- U.S. District Court · Southern District of New York
- 2
In Ultsch v. United States, Judge Briccetti reserved decision on fee relief and ordered briefing on whether Ultsch’s challenge belonged under Section 2255 or Section 2241.
Timothy James Ultsch and the United States; the order required the Southern District of New York U.S. Attorney’s Office to address the proper statutory treatment of Ultsch’s motion.
What happened
In Ultsch v. United States, Timothy James Ultsch pleaded guilty to possessing a firearm as a felon and was sentenced to 180 months in prison. After a later Supreme Court decision, he sought relief from that conviction and sentence.
A court in Virginia decided that his request should be treated as a petition under Section 2241, which generally must be filed where the prisoner is held. Because Ultsch was incarcerated at FCI Otisville in New York, that court transferred the matter to the Southern District of New York.
Judge Briccetti reserved decision on Ultsch’s request to proceed without paying filing fees and ordered the government to address whether the case was instead a second or successive petition under Section 2255. The order did not decide that issue or the merits of Ultsch’s challenge, and it denied fee-waiver status for any appeal.
The detailed version
- Ultsch v. United States · No. 7:19-cv-10703
- Vincent Briccetti
- Dec. 19, 2019
Background
On July 16, 2012, Timothy James Ultsch pleaded guilty to one count of being a felon in possession of a firearm, violating 18 U.S.C. § 922(g)(1). The Eastern District of Virginia sentenced him to 180 months in prison.
After the Supreme Court decided Rehaif v. United States, Ultsch moved in the Eastern District of Virginia for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651(a). The opinion does not describe the specific relief he sought beyond identifying the motion and its legal basis.
Transfer and jurisdiction issue
After receiving the government’s response and Ultsch’s reply, the Eastern District of Virginia concluded that Ultsch’s claim properly fell under 28 U.S.C. § 2241. Because a Section 2241 petition must be filed in the district where the petitioner is incarcerated, and Ultsch was incarcerated at FCI Otisville in New York, that court found that it lacked jurisdiction and transferred the motion to the Southern District of New York in the interest of justice.
The Southern District of New York then had to determine whether the motion was properly treated as a Section 2241 petition or as a second or successive petition under 28 U.S.C. § 2255. If it were a second or successive Section 2255 petition, the court stated that it would have to transfer the matter to the U.S. Court of Appeals for the Fourth Circuit under 28 U.S.C. § 2244(b)(3)(A). If it were a Section 2241 petition, the court stated that it might retain jurisdiction.
Order
Judge Briccetti reserved decision on Ultsch’s request to proceed without prepaying filing fees. The court ordered the U.S. Attorney’s Office for the Southern District of New York to file a letter by January 21, 2020, addressing the Section 2255-versus-Section 2241 issue. Ultsch could, but was not required to, respond by February 20, 2020.
The order did not decide which statute applied, whether the court had jurisdiction, or whether Ultsch was entitled to relief. The court also certified that any appeal would not be taken in good faith and denied fee-waiver status for purposes of an appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.