United States District Court, E.D. Kentucky, Northern Division, at Covington
May 18, 2015
UNITED STATES OF AMERICA, Plaintiff,
PATRICK ANDREW DONALD, Defendant.
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This action is pending for consideration of Defendant Patrick Andrew Donald's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 78] In accordance with local practice, the pending motion was referred to a United States Magistrate Judge for review and issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On April 28, 2015, United States Magistrate Judge Hanly A. Ingram recommended that the Court dismiss Donald's action, based on Donald's failure to comply with his Order entered March 24, 2015. [Record No. 80]
Upon preliminary review under Rule 4 of the Rules Governing Section 2255 Proceedings, the Magistrate Judge found that Donald's petition was procedurally improper. [Record No. 79] Specifically, Donald did not sign his motion under penalty of perjury as required by Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings. Donald was given until April 13, 2015, to file a corrected petition. [ Id. ] When no correction was filed by the deadline, the Magistrate Judge's recommended that the action be dismissed under Rule 4. [Record No. 80] However, in response to the Magistrate Judge's recommendation, Donald filed a corrected petition on May 15, 2015, signed under penalty of perjury, along with an affidavit and explanation that he had complied with the earlier Order. [Record Nos. 81, 81-2, 81-3] He states, "[o]n April 2, 2015 I sent the corrected filed motion seeking to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, to United States District Court, Eastern District of KY, North Division, Covington, Ky via. [sic] Bureau of Prison mailing system." [Record No. 81-3] In light of these circumstances, it is hereby
ORDERED that the Report and Recommendation of United States Magistrate Judge Hanly A. Ingram [Record No. 80] is DENIED. The Magistrate Judge is directed to consider Petitioner Patrick A. Donald's corrected motion to vacate under 28 U.S.C. § 2255 [Record No. 81] as if it had been filed in accordance with the Magistrate Judge's earlier instrucitons.