U.S.
v.
Nelson

United States District Court, W.D. Virginia, Charlottesville DivisionJan 28, 2011
Criminal Case No. 3:95cr00051-1. (W.D. Va. Jan. 28, 2011)

Criminal Case No. 3:95cr00051-1.

January 28, 2011


2255 MEMORANDUM OPINION


Petitioner, Damien Nelson, a federal inmate proceeding pro se, has filed a "Petition for Redress of Grievances Under the First Amendment of the United States Constitution." Because Nelson appears to be challenging the constitutionality of his underlying criminal conviction and sentence, the court construes his filing as a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. However, court records indicate that Nelson has previously filed a § 2255 motion which the court dismissed as untimely filed. Therefore, the court finds that this action must be dismissed without prejudice as a successive.

I.

On July 22, 2010, Nelson filed a "Petition for Redress of Grievances Under the First Amendment of the United States Constitution" which the court construed as a motion pursuant to § 2255. The court advised Nelson of the court's intention to construe his filing as a § 2255 motion pursuant to Castro v. United States, 540 U.S. 375 (2003), and gave Nelson the opportunity to object to the court's intended construction. At the same time, the court advised Nelson that his motion appeared to be untimely filed and gave him the opportunity to file any additional information concerning the timeliness of his motion. Nelson did not object to the court's construction and did not respond regarding the issue of timeliness within the time allotted. Accordingly, the court dismissed Nelson § 2255 motion as untimely filed.

II.

This court may consider a second or successive § 2255 motion only upon specific certification from the United States Court of Appeals for the Fourth Circuit that the claims in the motion meet certain criteria. See § 2255(h). As Nelson has not submitted any evidence of having obtained certification from the Court of Appeals to file a second or successive § 2255 motion, the court must dismiss his petition as successive.

III.

For the reasons stated, the court dismisses Nelson's § 2255 motion without prejudice as successive.

The Clerk is directed to send a certified copy of this Memorandum Opinion and the accompanying Order to the petitioner.

Entered this 28th day of January, 2011.