SMITH v. United States

• Court: District Court, S.D. Indiana
• Decided: January 6, 2023
• Docket: 1:22-cv-02462
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MARVIN SMITH, ) ) Petitioner, ) ) v. ) No. 1:22-cv-02462-JPH-MJD ) UNITED STATES OF AMERICA, ) ) Respondent. )

Castro Notice

A court may grant relief from a federal conviction or sentence pursuant to 28 U.S.C. § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "[A]ny paper asking for the relief provided by § 2255 ¶ 1 is a motion under § 2255, without regard to its caption or other details." Ellzey v. United States, 324 F.3d 521, 524 (7th Cir. 2003) (citing cases). Petitioner is entitled to notice that his ability to file any subsequent motion pursuant to § 2255 is restricted. He must also be afforded the opportunity to withdraw or amend the motion to include all § 2255 claims which he believes he has. Castro v. United States, 540 U.S. 375, 383 (2003). As explained in In re Davenport, 147 F.3d 605, 610 (7th Cir. 1998), "[t]he amended section 2255 gives a convicted defendant only one further bite at the apple after his direct appeal unless he can demonstrate a compelling reason, as defined in the section (newly discovered evidence of innocence or a new and retroactive rule of constitutional law)." Therefore, a petitioner seeking relief pursuant to § 2255 must set forth all clatms and grounds on which he or she seeks relief. If he does not do so, he will likely not be able to bring those claims in a future § 2255 motion. This Order provides the petitioner with his notice of his opportunity to withdraw or amend the motion. He shall have through January 31, 2023, in which to either supplement his motion filed on December 22, 2022 with a complete statement of the claims and grounds on which he could and does challenge his conviction and/or sentence or withdraw such motion insofar as it could be thought to seek relief authorized by 28 U.S.C. § 2255. He may, in the alternative, notify the court that the filing of December 22, 2022, does constitute a complete statement of the claims and grounds on which he could and does challenge his conviction and/or sentence. If he does not take one of these steps by January 31, 2023, the motion will be treated as a § 2255 motion and the case will proceed. The clerk shall include a form § 2255 motion with the petitioner's copy of this Order. The clerk shall also update petitioner's address as follows: Marvin Smith Reg. No. 15250-028 United States Penitentiary McCreary P.O. Box 3000 Pine Knot, KY 42635 SO ORDERED. Date: 1/6/2023 S\amnu Patruck ltanbove James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution:

Marvin Smith Reg. No. 15250-028 United States Penitentiary McCreary P.O. Box 3000 Pine Knot, KY 42635