Williams v. United States of America

Filing 5

OPINION, MEMORANDUM AND ORDER re: 1 ORDERED tha tmovant shall be granted up to and including March 18, 2013, in which to file an amended motion to vacate on a Court-provided form. FURTHER ORDERED that the Clerk shall mail to movant a copy of the C ourt's form for a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. FURTHER ORDERED that movant's failure to comply with this Order will result in the dismissal of this action.. Signed by District Judge Henry E. Autrey on 2/14/13. (Attachments: # 1 Motion to Vacate form)(CEL)

Page 1

MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY

United States District Court

District
Docket or Case No.:

Name (under which you were convicted):
Place of Confinement:

Prisoner No.:

UNITED STATES OF AMERICA

Movant (include name under which convicted)
V.
MOTION

1.

(a) Name and location of court which entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know):
2.

(a) Date of the judgment of conviction (if you know):
(b) Date of sentencing:

3.

Length of sentence:

4.

Nature of crime (all counts):

5.

(a) What was your plea? (Check one)
(1) Not guilty G

(2) Guilty

G

(3) Nolo contendere (no contest)

(b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or
what did you plead guilty to and what did you plead not guilty to?

6.

If you went to trial, what kind of trial did you have? (Check one)

Jury G

Judge only G

G

Page 2

7.

Did you testify at a pretrial hearing, trial, or post-trial hearing?

8.

Did you appeal from the judgment of conviction?

9.

Yes G

No G

If you did appeal, answer the following:

Yes G

No G

(a) Name of court:
(b) Docket or case number (if you know):
(c) Result:
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:

(g) Did you file a petition for certiorari in the United States Supreme Court?

Yes

G

No G

If “Yes,” answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
(5) Grounds raised:

10.

Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications,
concerning this judgment of conviction in any court?
Yes G
No G

11.

If your answer to Question 10 was “Yes,” give the following information:
(a) (1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):

Page 3

(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or application?
Yes G

No G

(7) Result:
(8) Date of result (if you know):
(b) If you filed any second motion, petition, or application, give the same information:
(1) Name of court:
(2) Docket of case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or application?
Yes G

No G

(7) Result:
(8) Date of result (if you know):
(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition,
or application?
(1) First petition:

Yes G

No G

(2) Second petition:

Yes G

No G

(d) If you did not appeal from the action on any motion, petition, or application, explain briefly why you did not:

Page 4

12.

For this motion, state every ground on which you claim that you are being held in violation of the Constitution,
laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts
supporting each ground.

GROUND ONE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground One:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes G

No G

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes G

No G

(2) If you answer to Question (c)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes G

No G

Page 5

(4) Did you appeal from the denial of your motion, petition, or application?
Yes G

No G

(5) If your answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?
Yes G

No G

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this
issue:

GROUND TWO:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes G

No G

Page 6

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes G

No G

(2) If you answer to Question (c)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes G

No G

(4) Did you appeal from the denial of your motion, petition, or application?
Yes G

No G

(5) If your answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?
Yes G

No G

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this
issue:

Page 7

GROUND THREE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Three:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes G

No G

(2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes G

No G

(2) If you answer to Question (c)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes G

No G

(4) Did you appeal from the denial of your motion, petition, or application?
Yes G

No G

Page 8

(5) If your answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?
Yes G

No G

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this
issue:

GROUND FOUR:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Four:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes G

No G

(2) If you did not raise this issue in your direct appeal, explain why:

Page 9

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes G

No G

(2) If you answer to Question (c)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?
Yes G

No G

(4) Did you appeal from the denial of your motion, petition, or application?
Yes G

No G

(5) If your answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?
Yes G

No G

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this
issue:

13.

Is there any ground in this motion that you have not previously presented in some federal court? If so, which
ground or grounds have not been presented, and state your reasons for not presenting them:

Page 10

14.

Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the
you are challenging?
Yes G
No G
If “Yes,” state the name and location of the court, the docket or case number, the type of proceeding, and the
issues raised.

15.

Give the name and address, if known, of each attorney who represented you in the following stages of the
you are challenging:
(a) At the preliminary hearing:
(b) At the arraignment and plea:
(c) At the trial:
(d) At sentencing:
(e) On appeal:
(f) In any post-conviction proceeding:
(g) On appeal from any ruling against you in a post-conviction proceeding:

16.

Were you sentenced on more than one court of an indictment, or on more than one indictment, in the same court
No G
and at the same time?
Yes G

17.

Do you have any future sentence to serve after you complete the sentence for the judgment that you are
No G
challenging?
Yes G
(a) If so, give name and location of court that imposed the other sentence you will serve in the future:

Page 11

(b) Give the date the other sentence was imposed:
(c) Give the length of the other sentence:
(d) Have you filed, or do you plan to file, any motion, petition, or application that challenges the judgment or
sentence to be served in the future?

18.

Yes G

No G

TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain
why the one-year statute of limitations as contained in 28 U.S.C. § 2255 does not bar your motion.*

* The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) as contained in 28 U.S.C. § 2255,
paragraph 6, provides in part that:
A one-year period of limitation shall apply to a motion under this section. The limitation period shall run
from the latest of –
(1) the date on which the judgment of conviction became final;
(2) the date on which the impediment to making a motion created by governmental action in violation of
the Constitution or laws of the United States is removed, if the movant was prevented from making such a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has

Page 12

been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.

Therefore, movant asks that the Court grant the following relief:

or any other relief to which movant may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Motion
under 28 U.S.C. § 2255 was placed in the prison mailing system, first class postage prepaid on
(month, date, year).

Executed (signed) on

(date)

Signature of Movant

If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion.