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United States v. Nester

United States District Court, W.D. Virginia, Abingdon Division

May 15, 2019

UNITED STATES OF AMERICA
v.
GRANDY NESTER, Defendant.

          Grandy Nester, Pro Se Defendant.

          OPINION AND ORDER

          James P. Jones, United States District Judge.

         Defendant 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. § 2255.

         Under 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.

         Once a 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.

         Rule 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 requirement.

         Accordingly, it is hereby ORDERED as follows:

         1. 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.

         Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion under 28 U.S.C. § 2255)

         Instructions

         1. To 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).

         2. You 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 judgment.

         3. To 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.

         4. 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 ...


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