Tolbert v. USA

Filing 19

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations. ORDERED that Levon Dandrus Tolbert's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § ; 2255 is DISMISSED without prejudice. The dismissal of the present § 2255 motion without prejudice does not count as a first § 2255 motion for purposes of a second or successive § 2255 motion. Signed by Judge Marcia A. Crone on 6/5/2017. (daj, )

UNITED STATES DISTRICT COURT

LEVON DANDRUS TOLBERT, #33569-077 §
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versus
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§
UNITED STATES OF AMERICA
§

EASTERN DISTRICT OF TEXAS

CIVIL ACTION NO. 4:16-CV-792
CRIMINAL ACTION NO. 4:13CR00225-001

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that
Levon Dandrus Tolbert’s Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (#1) pursuant to 28 U.S.C. § 2255 should be dismissed without prejudice. The Report
and Recommendation of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and no
objections thereto having been timely filed, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, and adopts same as the findings and conclusions
of the Court.
It is accordingly ORDERED that Levon Dandrus Tolbert’s Motion to Vacate, Set Aside
or Correct Sentence by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § 2255 is
DISMISSED without prejudice. The dismissal of the present § 2255 motion without prejudice
does not count as a first § 2255 motion for purposes of a “second or successive” § 2255 motion.
See Castro v. United States, 540 U.S. 375, 383 (2003).
It is further ORDERED that the Clerk of Court shall file the 18 U.S.C. § 3582(c)(2)
Motion (#1) in Criminal Number 4:13CR00225-001.

It is finally ORDERED that all motions by either party not previously ruled upon are
.
DENIED.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 5th day of June, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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