Childs v. United States of America

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant 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 § 2255 motion. IT IS FURTHER ORDERED t hat if movant consents to the characterization of the instant filing as § 2255 motion, then he must file an amended § 2255 motion on a Court-provided form within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if mova nt does not consent to the characterization of the instant filing as a § 2255 motion, or if movant fails to timely respond to this Order, then the Court will dismiss this action without prejudice and without characterizing the filing as a § 2255 motion. IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy of the Court's form motion to vacate, set aside, or correct sentence under 28 U.S.C. (COPY OF MOTION TO VACATE MAILED TO MOVANT) § 2255.. Signed by District Judge Rodney W. Sippel on 6/12/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEMETRIUS CHILDS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13-CV-624-RWS

MEMORANDUM AND ORDER
This matter is before the Court upon its own motion. On April 1, 2013, movant
submitted a document to the Court titled “Motion to Vacate this Guilty Plea.” In the
interests of justice, the Clerk provisionally docketed the motion as a motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255.
Before the Court may sua sponte characterize the instant filing as a § 2255
motion, however, movant must be given the opportunity to either consent to the
classification or withdraw the filing. See Morales v. United States, 304 F.3d 764, 767
(8th Cir. 2002). Movant is warned that if he consents to the classification of the
instant filing as a motion under § 2255, any future § 2255 motions will be subject to
the restrictions on filing second or successive motions. That is, movant will not be
permitted to bring a second or successive § 2255 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 § 2255(h)(1)-(2). Furthermore, movant is warned
that § 2255 motions are subject to a one-year limitations period. See 28 U.S.C.
§ 2255(f).
If movant consents to the characterization of the instant filing as a § 2255
motion, he must inform the Court of his decision, in writing, within thirty days of the
date of this Order. Furthermore, if movant consents to the characterization, then he
must file an amended § 2255 motion on a Court-provided form within thirty days of
the date of this Order.
If movant opposes the characterization, or if movant fails to respond to this
Order, then the Court will dismiss this action without prejudice and without
characterizing the filing as a § 2255 motion.
Accordingly,
IT IS HEREBY ORDERED that movant 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 § 2255 motion.
IT IS FURTHER ORDERED that if movant consents to the characterization
of the instant filing as § 2255 motion, then he must file an amended § 2255 motion
on a Court-provided form within thirty (30) days of the date of this Order.

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IT IS FURTHER ORDERED that if movant does not consent to the
characterization of the instant filing as a § 2255 motion, or if movant fails to timely
respond to this Order, then the Court will dismiss this action without prejudice and
without characterizing the filing as a § 2255 motion.
IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy of
the Court’s form motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255.
Dated this 12th day of June, 2013.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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