Opinion
Case No. 5:14-cr-00036-2
12-08-2015
UNITED STATES OF AMERICA v. DONNA JEAN JENKINS, Petitioner.
MEMORANDUM OPINION
By its Order entered on October 29, 2015, the court notified petitioner of its intent to construe and address petitioner's "Notice of Motion" as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The Order advised petitioner to complete and return a form § 2255 motion if the "Notice of Motion" was intended to challenge the criminal judgment. See Castro v. United States, 540 U.S. 375, 383 (2003) (requiring the court to give petitioner an opportunity to elect whether a criminal motion should be addressed as § 2255 motion). The Order also notified petitioner that a failure to respond would result in the construed § 2255 motion being dismissed without prejudice.
Petitioner responded, objecting to the court considering the "Notice of Motion" as a § 2255 motion at this time. Accordingly, the court dismisses the conditionally filed § 2255 motion without prejudice to petitioner's ability to file another § 2255 motion, subject to the time limits of 28 U.S.C. § 2255(f). Based the court's finding that petitioner has not made the requisite substantial showing of denial of a constitutional right as required by 28 U.S.C. § 2253(c), a certificate of appealability is denied.
ENTER: This 8th day of December, 2015.
/s/_________
United States District Judge