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United States v. Pittman

April 23, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TIMMY TEMPLE PITTMAN, DEFENDANT.



The opinion of the court was delivered by: C. Weston Houck United States District Judge

ORDER

On October 1, 2004, the defendant filed a motion to re-sentence. The defendant claims that he is actually innocent of an offense the Court used to enhance his sentence. On May 24, 2006, the Court advised the defendant of its intention to characterize the motion as a motion under 28 U.S.C. § 2255. See United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002)(requiring notice to defendant before a district court, sua sponte, converts motion to amend criminal judgment into a motion under § 2255).

The Court also advised the defendant that the record indicates an action under section 2255 would be barred by the one year limitations period and that the defendant should respond with grounds supporting a claim that the action has been filed within the limitations period. See Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002); see also United States v. Sosa, 364 F.3d 507, 510 n. 4 (4th Cir. 2004)(applying the holding in Hill v. Braxton to § 2255 motions). The Court further advised the defendant that if he did not respond within 60 days, the Court would characterize the motion as an action under section 2255 and dismiss the action as untimely.

As of this date, the defendant has not responded. Accordingly, the Court characterizes the defendant's motion to re-sentence as a motion pursuant to section 2255. The Court also dismisses the 2255 action as untimely.

On July 23, 2000, the defendant shot and killed Joseph Taylor ("Taylor"). The defendant was charged in state court for first degree murder. The defendant was also charged in federal court for being a felon in possession of a firearm and for having three previous convictions for violent felonies. On December 12, 2000, the defendant pled guilty to the federal charges. In the plea agreement, the defendant agreed to a sentence of 275 months imprisonment. On April 23, 2002, this Court sentenced the defendant to 275 months imprisonment ...


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