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 ordered Timothy James Ultsch to say whether he accepts relabeling his motion as a Section 2241 petition.
Timothy James Ultsch, whose motion’s legal classification remained unresolved and who was ordered to choose whether to proceed under Section 2241 or withdraw it.
What happened
In Ultsch v. United States, Timothy James Ultsch challenged the consequences of his 2012 guilty plea and 180-month sentence for possessing a firearm as a convicted felon. He filed his motion after the Supreme Court’s decision in Rehaif v. United States.
A Virginia federal court transferred the motion to the Southern District of New York because Ultsch was incarcerated in New York and the court concluded that a petition under Section 2241 had to be filed where he was imprisoned. The government then said the motion might properly be treated as a Section 2241 petition.
Judge Vincent Briccetti ordered Ultsch to respond by February 24, 2020, stating whether he agreed to that treatment or wanted to withdraw the motion. The order did not decide the motion’s legal classification or its underlying claim, and it denied free-court-filing status for any appeal.
The detailed version
- Ultsch v. United States · No. 7:19-cv-10703
- Vincent Briccetti
- Jan. 23, 2020
Background
Timothy James Ultsch pleaded guilty on July 16, 2012, to possessing a firearm as a convicted felon, 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 in 2019, Ultsch filed a motion in the Eastern District of Virginia seeking relief under the All Writs Act. That court concluded that the requested relief properly belonged under 28 U.S.C. § 2241, a federal law allowing a prisoner to challenge certain aspects of custody. Because Ultsch was incarcerated at FCI Otisville in New York, the Virginia court determined that it lacked jurisdiction and transferred the motion to the Southern District of New York.
Question Before the Court
The Southern District of New York had previously asked the government to address whether Ultsch’s motion should instead be treated as a second or successive petition under 28 U.S.C. § 2255. If so, the court stated that it might transfer the matter to the U.S. Court of Appeals for the Fourth Circuit. If the motion was treated as a Section 2241 petition, the Southern District of New York would retain jurisdiction.
The government responded that the motion might properly be treated as a Section 2241 petition. The court had not yet decided whether that treatment was correct.
Order
Judge Vincent L. Briccetti ordered Ultsch to file a response by February 24, 2020. His response had to state whether he agreed to have the motion treated as a Section 2241 petition or wanted to withdraw it instead.
The court warned that treating the motion as a Section 2241 petition could trigger restrictions on later or successive petitions under the Antiterrorism and Effective Death Penalty Act. The order therefore gave Ultsch an opportunity to make that choice with notice of the possible consequences.
The order did not decide whether the motion was properly a Section 2241 or Section 2255 petition, and it did not decide the merits of Ultsch’s challenge. The court also certified that an appeal would not be taken in good faith and denied free-court-filing status for purposes of an appeal. The Clerk was instructed to mail the order to Ultsch.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.