Harris v. Russell

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner shall have thirty (30) days from the date of this Order to formally consent, in writing, to the Courts characterization of the instant filing as § 2254 motion. IT IS FURTHER ORDERED tha t if petitioner consents to the characterization, then he must file an amended § 2254 motion on the Court-provided form within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if petitioner does not consent to the character ization of the instant filing as a § 2254 motion, or if petitioner fails to timely respond to this Order, then the Court will dismiss the action without prejudice and without characterizing the filing as a § 2254 motion. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court's form petitioner for writ of habeas corpus under 28 U.S.C. § 2254.. Signed by District Judge John A. Ross on 11/27/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTOINE HARRIS,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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No. 4:12-CV-1980-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon its own motion. Petitioner submitted a
letter to the Court requesting relief from a state court criminal conviction. In the
interests of justice, the Clerk provisionally docketed the letter as a petition for writ of
habeas corpus under 28 U.S.C. § 2254.
Before the Court will sua sponte characterize the instant filing as a § 2254
motion, petitioner will be given the opportunity to either consent to the classification
or withdraw the filing. See, e.g., Morales v. United States, 304 F.3d 764, 767 (8th Cir.
2002).
Petitioner is warned that if he consents to the classification of the instant filing
as a motion under § 2254, any future § 2254 motions will be subject to the restrictions
on filing second or successive motions. That is, petitioner will not be permitted to
bring a second or successive § 2254 motion unless the United States Court of Appeals

for the Eighth Circuit certifies that the second or successive motion meets the
requirements set forth in 28 U.S.C. § 2244(b)(3)(A).

Furthermore, petitioner is

warned that § 2254 motions are subject to a one-year limitations period. See 28
U.S.C. § 2244(d).
If petitioner consents to the characterization of the instant filing as a § 2254
motion, he must inform the Court of his decision, in writing, within thirty days of the
date of this Order. Furthermore, if petitioner consents to the characterization, then he
must file an amended § 2254 motion on the Court-provided form within thirty days
of the date of this Order.
If movant opposes the characterization, or if petitioner fails to respond to this
Order, then the Court will dismiss the action without prejudice and without
characterizing the filing as a § 2254 motion.
Accordingly,
IT IS HEREBY ORDERED that petitioner shall have thirty (30) days from
the date of this Order to formally consent, in writing, to the Court’s characterization
of the instant filing as § 2254 motion.
IT IS FURTHER ORDERED that if petitioner consents to the
characterization, then he must file an amended § 2254 motion on the Court-provided
form within thirty (30) days of the date of this Order.
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IT IS FURTHER ORDERED that if petitioner does not consent to the
characterization of the instant filing as a § 2254 motion, or if petitioner fails to timely
respond to this Order, then the Court will dismiss the action without prejudice and
without characterizing the filing as a § 2254 motion.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of
the Court’s form petitioner for writ of habeas corpus under 28 U.S.C. § 2254.
Dated this 27th day of November, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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