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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
EDWIN GARCIA SMITH,
UNITED STATES OF AMERICA,
CASE NO. 8:13-cv-2400-T-30TBM
CRIMINAL CASE NO. 8:12-cr-97-T-30TBM
O R D E R
Petitioner, an inmate in a Federal penal institution proceeding pro se, filed a motion
to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255
challenging his 2012 plea-based conviction for conspiracy to possess with intent to distribute
five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the
United States (CV Dkt. 1). Pursuant to Rule 4(b), Rules Governing Section 2255
Proceedings, the Court has undertaken a preliminary review of the motion. Contrary to the
express directions of Rule 2(b), the motion does not “state the facts supporting each ground”
asserted therein. See Rule 2(b), Rules Governing Section 2255 Proceedings (2013). In fact,
Petitioner fails to make any factual allegations in his motion. Instead, Petitioner alleges
“ineffective counsel,” “lack of jurisdiction,” and asserts that “other grounds may be added
upon review of transcripts, presently awaiting.” (CV Dkt. 1 at 4-8).
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There are no claims set out in the § 2255 motion. By virtue of his presence during the
criminal proceedings, Petitioner should have been put on notice of possible bases for a §
Petitioner’s attempt to avoid the effects of the limitation period applicable to § 2255
motions by requesting relief based on generic statements of ineffective assistance of counsel
and lack of jurisdiction is unavailing. To secure a hearing on his claims, a habeas petitioner
must allege facts, which, if true, would entitle him to habeas relief. Stano v. Dugger, 901
F.2d 898, 899 (11th Cir. 1990) (en banc). The law does not require a federal habeas court to
hear a claim based entirely on conclusoly allegations wholly devoid of specifics. Campbell
v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (en banc).
Without expressing any opinion regarding the timeliness of claims for collateral relief
Petitioner may subsequently file, the Court finds that because Petitioner has failed to set forth
his claims with adequate specificity, he must file an amended motion. Petitioner may also
file a memorandum of law in support of his motion, not to exceed 20 pages in length.
ACCORDINGLY, the Court ORDERS that:
The Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (CV Dkt. 1) is DISMISSED without prejudice.
Petitioner shall, within TWENTY (20) DAYS from the date of this order, file
an amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 that
complies with the instructions on the form. Petitioner must set forth with specificity each of
his claims for relief and a brief statement of the facts which support the claim(s). Failure
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to comply with the terms of this order within the allotted time shall result in the
automatic dismissal of this case without further notice.1
The Clerk shall enclose two copies of the court-approved form for use in filing
§ 2255 motions with Petitioner’s copy of this order. This case number should be affixed to
DONE and ORDERED in Tampa, Florida on September 20, 2013.
Copies furnished to:
Counsel/Parties of Record
1Petitioner is cautioned that the time in which a federal habeas petition is pending does not toll the one-year
limitation period. See Jones v. United States, 304 F.3d 1035, 1040-41 (11th Cir. 2002).