United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge.
MATTER is before the Court on the Defendant's
“Motion to Withdraw Guilty Plea” [Doc. 140].
August 25, 2016, the Defendant pled guilty pursuant to a
written plea agreement to one count of conspiracy to
distribute and to possess with intent to distribute a
quantity of methamphetamine, in violation of 21 U.S.C.
§§ 841 and 846. On March 30, 2017, the Defendant
was sentenced to a term of 151 months' imprisonment.
Judgment was entered on April 10, 2017. [Doc. 120]. The
Defendant did not file a direct appeal. The Court received
the present motion from the Defendant on January 10, 2018.
motion, the Defendant asserts claims of ineffective
assistance of counsel and contends that his guilty plea was
not knowingly and voluntarily made. It therefore appears that
the Defendant may have intended to bring an action pursuant
to 28 U.S.C. § 2255 to vacate, set aside or correct his
conviction and sentence. The Court will thus provide the
Defendant with notice, pursuant to Castro v. United
States, 540 U.S. 375 (2003), that it intends to
recharacterize this communication with the Court as an
attempt to file a motion pursuant to 28 U.S.C. § 2255.
The Defendant shall be provided an opportunity to advise the
Court whether he agrees or disagrees with this
recharacterization of the motion.
making this decision, the Defendant should consider that if
the Court construes this motion as one brought pursuant to
§ 2255, it will be his first § 2255 petition, which
will mean that before he can thereafter file a second or
successive § 2255 petition, the Defendant must receive
certification from the United States Court of Appeals for the
Fourth Circuit. Moreover, in determining whether the
Defendant agrees or disagrees with this recharacterization,
he should consider that the law imposes a one-year statute of
limitations on the right to bring a motion pursuant to §
2255. This one-year period begins to run at the latest of:
1. the date on which the judgment of conviction became final;
2. the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
3. 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; or
4. the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
28 U.S.C. § 2255(f).
Defendant may respond on or before 30 days from service of
this Order. If the Defendant timely responds to this Order
and does not agree to have the motion recharacterized as one
under § 2255, he will be required to withdraw his
motion. If the Defendant fails to respond to this Order or
agrees to have the motion recharacterized as one pursuant to
§ 2255, the Court will consider the motion pursuant to
§ 2255 and shall consider it filed as of the date the
original motion was filed.
Defendant agrees to have the motion considered as one filed
pursuant to § 2255, the Court will provide a time within
which an amendment to the motion, to the extent permitted by
law, may be filed. In filing an amended and restated motion
to vacate, the Defendant must substantially follow the form
for § 2255 motions which has been approved for use in
this judicial district. See Rule 2(c), Rules
Governing Section 2255 Proceedings for the United ...