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Case 8:13-cv-02400-JSM-TBM Document 3 Filed 09/20/13 Page 1 of 3 PageID 18

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EDWIN GARCIA SMITH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________/

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).

Case 8:13-cv-02400-JSM-TBM Document 3 Filed 09/20/13 Page 2 of 3 PageID 19

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 §

2255 motion.

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:

1.

The Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C.

§ 2255 (CV Dkt. 1) is DISMISSED without prejudice.

2.

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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Case 8:13-cv-02400-JSM-TBM Document 3 Filed 09/20/13 Page 3 of 3 PageID 20

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

3.

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

the forms.

DONE and ORDERED in Tampa, Florida on September 20, 2013.

SA:sfc
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).

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