Opinion
1:22CR95-1 1:23CV509
07-06-2023
LARRY KIRKLAND, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
Petitioner, a federal prisoner, submitted a Motion to Vacate, Set Aside, or Correct Sentence (Docket Entry 28) pursuant to 28 U.S.C. § 2255. This Motion cannot be further processed for the following reason:
1. Petitioner did not include his claims for relief in his Motion. He must set out those claims.
Because of this pleading failure, this particular Motion will be dismissed, but without prejudice to Petitioner promptly filing a new motion properly following the 28 U.S.C. § 2255 forms and correcting the defect of the present Motion. To further aid Petitioner, the Clerk is instructed to send Petitioner new § 2255 forms and instructions for filing a § 2255 motion, which Petitioner should follow.
To the extent there are any issues regarding the running of the statute of limitations in this case, the parties can litigate those issues following any refiling by Petitioner.
Petitioner also filed a Motion (Docket Entry 27) seeking an extension of the deadline to file his Motion under § 2255. However, this request cannot be granted for two reasons. First, the Court never set any deadline for Petitioner to file his Motion. Second, any deadline is controlled by the statute of limitations set out in § 2255. The Court cannot simply extend that deadline. Petitioner should submit his Motion using the correct form and setting out his claims as promptly as possible.
IT IS THEREFORE ORDERED that Petitioner's Motion (Docket Entry 27) for an extension of time is denied.
IT IS FURTHER ORDERED that the Clerk is instructed to send Petitioner § 2255 forms and instructions.
IT IS THEREFORE RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Petitioner promptly filing a corrected motion on the proper § 2255 forms.