United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on movant's amended motion to
vacate under 28 U.S.C. § 2255. On review of the motion,
the Court finds that it is unclear whether movant understands
the ramifications of filing a motion to vacate and the
consequences that come with it. Therefore, the Court will
advise him of those consequences and allow him to file a
second amended § 2255 motion or to consider withdrawing
it for filing at a later time.
was convicted by a jury of distribution of cocaine and
possession of a firearm in furtherance of a drug-trafficking
crime. United States v. Combs, No. 4:13-CR-391 JAR.
The Court sentenced him to 186 months' imprisonment. The
Court of Appeals for the Eighth Circuit affirmed. United
States v. Combs, 827 F.3d 790 (8th Cir. 2016).
filed a motion "to appoint counsel in light of
Johnson on September 29, 2016, in the
underlying criminal action. In accordance with the
Court's standard procedures with regard to
Johnson cases, the Court converted the motion to a
§ 2255 case.
this case was opened, the Court directed movant to submit an
amended motion on the Court's standard form. Movant has
filed the amended motion. However, the motion does not
contain any grounds for relief. The Court notes that it is
doubtful that Johnson's holding applies to
movant's sentence because it was not enhanced under the
ACCA or the Sentencing Guidelines.
case, when the Court decided to reclassify movant's
motion to appoint counsel as a § 2255 motion, it did not
provide him with the required notice of the ramifications of
When a district court intends to reclassify a pro se
litigant's pleading as a § 2255 motion, it must do
two things. First, the court must warn the litigant of the
restrictions on second or successive motions, and of the
one-year limitations period, set forth in 28 U.S.C. §
2255. Second, the court must provide him an opportunity
either to consent to the reclassification or to withdraw his
Morales v. United States, 304 F.3d 764, 767 (8th
Court is now giving movant the option of withdrawing his
motion or consenting to the reclassification of it as a
motion to vacate. If movant consents, he must file all of his
grounds for relief in the motion. That is, he may or may not
wish to bring claims for ineffective assistance of counsel or
prosecutorial misconduct, for example, or any other ground he
believes entitles him to relief. He should also articulate
his Johnson claim if he believes it offers him
relief. If he consents to the reclassification and fails to
bring all of his potential grounds for relief, he most likely
will not be able to bring those grounds for relief at a later
time because § 2255(h) prohibits the filing of second or
successive motions without approval of the Court of Appeals
and only in very limited circumstances.
§ 2255 contains a one-year statute of limitations, which
starts when the criminal judgment becomes final.
Consequently, movant must be sure to timely file any of his
potential grounds for relief or he may be forever barred from
bringing them before the Court.
the Court notes that it will not appoint counsel for movant
at this time because it does not appear that Johnson
provides him with relief. However, the Court has not decided
this issue, and movant should bring any claims that might
possibly lead to sentencing relief.
IT IS HEREBY ORDERED that movant must either consent in
writing to reclassification of his motion to appoint counsel
as a motion to vacate under 28 U.S.C. § 2255, or he must
withdraw the ...