United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
matter is before the court on pro se Defendant Eric
Maurice Pinckney's (“Defendant”) letter to
the court, which appears to seek relief pursuant to 28 U.S.C.
§ 2255. (ECF No. 218.) For the reasons set forth below,
the court directs Defendant to give notice of his intention
of filing his letter as a § 2255 motion or his intention
to amend or withdraw his motion.
Factual and Procedural History
August 20, 2014, Defendant was indicted by a grand jury of
(1) conspiring to defraud the United States, (2) three counts
of filing false tax returns in violation of 26 U.S.C. §
7206(1), (3) and four counts of assisting in the preparation
of false tax returns. (ECF No. 67.) On December 2, 2016,
Defendant was sentenced to 6 months' imprisonment
followed by a term of supervised release of 3 years with
standard and special conditions to include placement on a
Radio Frequency Location Monitor System with home dentition
for a term of 6 months. (ECF No. 199.) Additionally, the
court determined that Defendant owed restitution in the
amount of $334, 738.02. (Id.)
March 24, 2017, Defendant filed this instant letter, which
could be understood as essentially seeking to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. (ECF No. 218.) In his letter, Defendant contends that
prosecutor DeWayne Pearson (“the Prosecutor”) did
not follow the Federal Rules of Criminal Procedure.
Specifically, Defendant asserts that the Prosecutor violated
Rules 3, 6(b)(1), 6(c), 6(c)(3) and 6(f) as well as
Defendant's Fourth, Fifth, and Sixth Amendment rights.
(Id.) Therefore, Defendant argues that these
violations void both his indictment and plea bargain.
prisoner in federal custody under sentence of a federal court
may petition the court that imposed the sentence to vacate,
set aside, or correct the sentence. See 28 U.S.C.
§ 2255. The prisoner may be entitled to relief upon a
showing: that the sentence was imposed in violation of the
constitution or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the
sentence was in excess of the maximum authorized by law, and
that the sentence is otherwise subject to collateral attack.
Id. However, § 2255 motions that allege
violations of federal law are generally cognizable only if
they involve a “fundamental defect which results in a
complete miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974). A petitioner
collaterally attacking his conviction pursuant to § 2255
bears the burden of proving his grounds for collateral attack
by a preponderance of evidence. White v. United
States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing
Miller v. United States, 261 F.2d 546 (4th Cir.
1958)). In ruling on a § 2255 motion, the court may
dismiss the motion without a hearing when it conclusively
shows from the attached exhibits and the record of prior
proceedings that the moving party is not entitled to relief.
28 U.S.C. § 2255(b) (noting that a hearing is not
required on a § 2255 motion if the record of the case
conclusively shows that petitioner is entitled to no relief).
the court observes that Defendant did not conclusively
characterize his letter to the court as a § 2255 motion.
(See ECF No. 218.) However, to avoid overly
stringent application of labeling requirements, federal
courts will occasionally “ignore the legal label that a
pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a
different legal category.” Castro v. United
States, 540 U.S. 375, 381 (2003). But a district court
may not recharacterize a pro se litigant's motion as a
first § 2255 motion, unless the court “notif[ies]
the pro se litigant that it intends to
recharacterize the pleading, warn[s] the litigant that this
recharacterization means that any subsequent § 2255
motion will be subject to the restrictions on ‘second
or successive' motions, and provide[s] the litigant an
opportunity to withdraw the motion or to amend it so that it
contains all the § 2255 claims he believes he
has.” Id. at 383. “If the court fails to
do so, the motion cannot be considered to have become a
§ 2255 motion for purposes of applying to later motions
the law's ‘second or successive'
important for Defendant to give clear notice of his intention
to file the instant motion as a § 2255 motion because,
Defendant may only make one § 2255 motion before a
district court. All successive § 2255 motions must be
certified by the relevant United States Court of Appeals
which, in this case, is the Fourth Circuit. Additionally,
§ 2255(f) imposes a one-year period of limitation to
file a § 2255 motion. In the instant case, the relevant date
for determining the limitation period would be either
“the date on which the judgment of conviction becomes
final” or “the date on which the right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.” 28 U.S.C § 2255(f)(1), (3). Here,
Defendant's motion is not barred by the one-year statute
of limitations since Defendant was convicted on December 2,
2016 (ECF No. 199) and filed the instant motion (ECF No. 218)
on March 24, 2017.
foregoing reasons, the court directs Defendant to give notice
of his intention of filing his letter as a § 2255 motion
or his intention to amend or withdraw his motion.
Additionally, the court directs the clerk of court to send
Defendant the applicable forms for filing a § 2255
IS SO ORDERED.