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U.S. v. STEWART, 5:14-CR-00090-FL-1 (2016)

Court: District Court, E.D. North Carolina Number: infdco20160119913 Visitors: 2
Filed: Jan. 15, 2016
Latest Update: Jan. 15, 2016
Summary: ORDER LOUISE W. FLANAGAN , District Judge . The matter now comes before the court on a series of letters movant filed which are dated August 7, 2015, October 30, 2015, November 9, 2015, and December 28, 2015. Given the nature of the relief sought and the basis for the relief, movant's letters properly should be considered as seeking relief under to 28 U.S.C. 2255. 1 Pursuant to Castro v. United States , 540 U.S. 375 (2003), the court hereby provides movant with notice that it intends
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ORDER

The matter now comes before the court on a series of letters movant filed which are dated August 7, 2015, October 30, 2015, November 9, 2015, and December 28, 2015. Given the nature of the relief sought and the basis for the relief, movant's letters properly should be considered as seeking relief under to 28 U.S.C. § 2255.1

Pursuant to Castro v. United States, 540 U.S. 375 (2003), the court hereby provides movant with notice that it intends to recharacterize his letters as an attempt to file a motion under 28 U.S.C. § 2255. The court also notifies movant of the § 2255 restrictions on second or successive motions, the one year period of limitations, and the four dates in § 2255 to be used in determining the starting date for the limitations period. See 28 U.S.C. § 2255. The court DIRECTS movant to file a response to this order within 21 days from the date of this order. The court advises movant that if, within the time set by the court, movant agrees to have his letters considered as a § 2255 motion, the court shall consider the motion as one under § 2255 and shall consider it filed as of the date movant's first letter was filed-August 7, 2015. If, however, movant fails to respond to this order, the court will not treat his filings as a § 2255 motion but will construe the filings simply as correspondence and no further action will be taken.

Where movant's filings do not substantially follow the form appended to the Rules Governing § 2255 Proceedings and are therefore not in compliance with Rule 2(c) of the Rules Governing § 2255 proceedings and Local Civil Rule 81.2 of this court, the clerk of court is DIRECTED to send a copy of the appropriate form to movant. If movant requests that the court consider his filings a § 2255 motion, movant must complete the § 2255 form in its entirety, sign it under penalty of perjury (or a person authorized by movant, such as an attorney, may sign it) and file the original with the clerk of this court. Movant is DIRECTED to return the form, in accordance with these instructions, within 21 days from the filing of this order. Failure to do so may result in dismissal of this action or the striking of movant's filings. Movant is cautioned that his filing on the proper form will be considered the § 2255 motion in its entirety and the court will not review movant's previously filed letters or other filings to glean any misplaced claims. All filings, including § 2255 motions on the correct form, must be submitted to:

Clerk of Court United States District Court, E.D.N.C. Terry Sanford Federal Building 310 New Bern Avenue, Room 574 Raleigh, NC 27601 ATTN: Prisoner Litigation Division

SO ORDERED.

FootNotes


1. Movant, in his October 30, 2015, letter references a motion for retrial pursuant to Federal Rule of Criminal Procedure 24 that he filed on October 23, 2014. However, the court's docket reflects that movant, through counsel, filed a "Notice of Withdrawal of Motion for a New Trial" on November 21, 2014, and the court terminated movant's motion.
Source:  Leagle

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