VANDERBECK v. UNITED STATE OF AMERICA

Filing 4

MEMORANDUM ORDER advising petitioner of rights under US V. MILLER and directing petitioner to advise the Court in 45 days; directing the Clerk to send Petitioner certain forms. Signed by Judge Freda L. Wolfson on 11/20/2018. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIK VANDERBECK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 18-4144 (FLW)

MEMORANDUM AND ORDER

Petitioner pro se, Erik Vanderbeck (“Petitioner”), a federal prisoner presently
incarcerated at F.C.I. Fort Dix, in Fort Dix, New Jersey, filed a motion to vacate, set aside, or
correct a sentence, pursuant to 28 U.S.C. § 2255. (See ECF No. 1.) The Court notes, however,
that the form motion filed by Petitioner lacks the required notice under United States v. Miller,
197 F.3d 644 (3d Cir. 1999). Because federal law requires a District Court to dismiss a second
or successive § 2255 motion, 28 U.S.C. §§ 2244(a), 2255(h), a § 2255 movant must include in
his or her first § 2255 motion all available federal claims. See Miller, 197 F.3d at 649; Rules
Governing § 2255 Cases, Rule 2(b)(1), 28 U.S.C.A. foll. § 2255. Consequently, the Court will
now provide the Miller notice to Petitioner. Before a District Court may rule on a § 2255 motion
from a pro se petitioner, it must notify the petitioner that he may either (1) have his pending
motion considered as his all-inclusive § 2255 motion and ruled on as filed, or (2) withdraw the
motion and file an amended timely § 2255 motion that includes all available federal claims.
Miller, 197 F.3d at 652.
Therefore, within 45 days, Petitioner shall notify the Court as to whether he (1) wishes to
have his motion ruled on as filed or (2) wishes to withdraw his motion and submit one all-

inclusive § 2255 motion. If Petitioner wishes to submit an amended motion, he shall do so
within 45 days of the entry of this Memorandum and Order.
Accordingly, IT IS, this 20th day of November 2018
ORDERED that Petitioner shall notify the Court within 45 days of the entry of this
Memorandum and Order whether he wishes to have his motion ruled on as filed or whether he
wishes to withdraw his motion and submit one all-inclusive § 2255 motion that includes all
available federal claims; and it is further
ORDERED that to the extent Petitioner wishes to withdraw his original motion and
submit one all-inclusive amended motion, he must submit the amended motion within 45 days of
the entry of this Court’s Order; and it is further
ORDERED that, if Petitioner fails to submit for filing an amended § 2255 motion within
45 days of the date of the entry of this Order, then this Court will consider Docket Entry Number
1 as Petitioner’s one and only all-inclusive § 2255 motion; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this order on Petitioner by
regular U.S. mail, accompanied by a blank Motion to Vacate, Set Aside, or Correct a Sentence
by a Person in Federal Custody, Form AO 243 (modified): DNJ-Habeas-004(Rev.01-2014); and
it is further
ORDERED that the Clerk’s service of the blank § 2255 motion form shall not be
construed as this Court’s finding that the original petition is or is not timely or that Petitioner's
claims are or are not duly exhausted.

/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
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