Case No. 5:04-cr-00055-MCR-AK.
January 31, 2006
This matter is before the Court on Doc. 37, Defendant's notice that he wants the Court to consider Doc. 30 as a motion to vacate under 28 U.S.C. § 2255. This avenue of notice is in compliance with the Court's prior order. Doc. 33.
Having reviewed Doc. 30, the Court finds that amendment is necessary. While Defendant submits specific evidence to support his allegation that his friend attempted contact with trial counsel, he has not submitted any specific facts to support his allegation that he himself directed counsel to file a notice of appeal. Thus, Defendant will be provided with the appropriate § 2255 form so that he may allege specific facts as to Defendant's own conversations with his attorney regarding an appeal, what was said, when it was said, and what transpired during the conversations. This amended motion will completely supplant the previously filed motion and notice; therefore, the amended motion set forth on the § 2255 form itself all grounds for relief, a summary of specific facts supporting each ground raised, and the relief requested. Defendant may certainly attach another copy of the letter previously supplied and submit sworn affidavits or statements under oath or penalty of perjury as exhibits to support the allegations of the amended motion.
Accordingly, it is ORDERED:
That the Clerk of Court shall forward to Petitioner three § 2255 forms;
That no later than February 28, 2006, Petitioner shall file an "amended motion" and one identical copy including any exhibits and memoranda. He shall keep an identical copy for his records;
That the Amended Motion shall include specific facts as to Defendant's conversations with his attorney regarding an appeal, what was said, when it was said, and what transpired during the conversations, and an affidavit from Defendant, under oath or under penalty of perjury, supporting these specific facts;
That failure to respond to this order as directed or any future orders will result in a recommendation of dismissal of this action.
DONE AND ORDERED.