United States v. Karl Modderman

MEMORANDUM

Defendant Karl Modderman challenges the imposition of three special conditions that apply to his lifetime term of supervised release, which will follow the 120 months’ imprisonment that he is now serving for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant did not challenge the conditions at his sentencing hearing. Nearly a year later, proceeding pro se, Defendant filed a motion for correction of clerical mistakes pursuant to Federal Rule of Criminal Procedure 36. After the district court denied that motion, this court issued an order construing Defendant’s Rule 36 motion as a petition under 28 U.S.C. § 2255 , premised on a claim that the specified conditions violate due process.

We vacate this court’s September 17, 2013 order construing the Rule 36 motion as a § 2255 petition, vacate the district court’s denial of the Rule 36 motion, and remand to the district court for further proceedings. On remand, the district court must inform Defendant of the consequences of recharacterizing his Rule 36 motion as a § 2255 petition and must give him an opportunity to withdraw or amend the motion pursuant to the procedures outlined…