United States District Court, W.D. Virginia, Abingdon Division
Nester, Pro Se Defendant.
OPINION AND ORDER
P. Jones, United States District Judge.
Grandy Nester, a federal inmate proceeding pro se, has filed
a miscellaneous motion complaining that his defense attorney
failed to provide effective assistance during guilty plea
proceedings and did not file a notice of appeal after Nester
asked him to do so. I intend to address the motion as one to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
Castro v. United States, 540 U.S. 375 (2003), a
court must notify a pro se litigant of its intention to
recharacterize a pleading as that litigant's first §
2255 motion and provide him the opportunity to withdraw the
motion or amend it so that it contains all the
§ 2255 claims that the litigant wishes to raise. 540
U.S. at 383. The court must also warn such inmates of the
potential consequences of recharacterizing the pleading as a
§ 2255 motion. Id.
litigant has filed one § 2255 motion, he or she must
obtain certification from the United States Court of Appeals
in order to file a second or subsequent § 2255 motion as
to the same conviction or sentence. 28 U.S.C. § 2255(h).
In light of this limitation on filing successive § 2255
motions, I advise Nester that if he elects to have the court
address the present motion as a § 2255 motion, he should
include all grounds that he believes cause his conviction or
sentence to be invalid or unconstitutional. However, if he
has additional claims and fails to amend, such claims raised
in a later § 2255 motion would be dismissed as
successive, unless he first received certification from the
United States Court of Appeals for the Fourth Circuit to file
a successive motion.
2(b) of the Rules Governing § 2255 Proceedings requires
a motion to vacate under § 2255 to be signed under
penalty of perjury and to substantially follow the standard
form. Nester's current submission does not meet this
it is hereby ORDERED as follows:
Nester's miscellaneous motion, ECF No. 722, is
CONDITIONALLY FILED as a § 2255 motion and Nester is
hereby DIRECTED to submit to the court within 21 days from
the date of entry of this Order either (a) an objection to
the court's intention to address the Motion to Reduce
Sentence as one arising under § 2255, or (b) a completed
§ 2255 motion form (ENCLOSED), signed under
penalty of perjury, to have the court consider the claims
under § 2255. Nester's failure to comply with this
Order will result in the dismissal of the conditionally filed
§ 2255 action without prejudice.
to Vacate, Set Aside, or Correct a Sentence By a Person in
Federal Custody (Motion under 28 U.S.C. § 2255)
use this form, you must be a person who is or will be serving
a sentence under a judgment against you in a federal court.
By using this form, you are asking for relief from the
conviction or the sentence because the sentence was imposed
in violation of the Constitution or laws of the United
States, the court was without jurisdiction to impose such
sentence, the sentence was in excess of the maximum
authorized by law, or the sentence is otherwise subject to
collateral attack. 28 U.S.C. §2255(a).
must file a § 2255 form in the United States district
court that entered the judgment that you are challenging. In
a § 2255 motion, you may challenge the judgment entered
by only one court. If you want to challenge a judgment
entered by a different judge or division (either in the same
district or in a different district), you must file a
separate motion in the federal court that entered that
ensure that your claims are given full consideration, your
responses on the form must be typed or neatly written in the
space provided, on one side of the paper only, with one-inch
margins on all sides of the text. Carbon copies are not
acceptable. Never use tape on pleadings submitted to the
Court. Your motion must be typed or legibly handwritten on
the attached form.
Answer all the questions. You do not need to cite any law.
You may submit additional pages if you need more space for
your answers. You may also submit a separate memorandum
explaining your claims. Be sure these ...