Dalton v. USA

Filing 3

MEMORANDUM DECISION & ORDER ( Movant's Motion pursuant to 28 U.S.C. § 2255 will be dismissed unless he shows cause, within 30 days of the date this Order is entered, why his Motion should not be dismissed as untimely.) Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent

Case No. 4:15-cv-00275-BLW
4:13-cr-00187-BLW
MEMORANDUM DECISION AND
ORDER

v.
DANIEL JOSEPH DALTON,
Defendant-Movant.

The Court has before it Daniel Joseph Dalton=s (AMovant@) Motion Pursuant to 28
U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Dkt. 1). Motions filed
pursuant to 28 U.S.C. ' 2255 must be filed within one year of Athe date on which the
judgment of conviction becomes final.@ 28 U.S.C. ' 2255(f)(1). In a case such as the
present one, where there was no direct appeal, a judgment of conviction becomes final 14
days after the district court enters judgment. See United States v. Schwartz, 274 F.3d
1220, 1223 (9th Cir. 2001).
Judgment was entered against Movant on May 22, 2014. Therefore, his conviction
became final on June 5, 2014, and the deadline for filing a ' 2255 motion became June 5,
2015. Movant, however, did not file his ' 2255 Motion until July 20, 2015,
approximately six weeks after the deadline had passed.
MEMORANDUM DECISION AND ORDER - 1

Movant is hereby notified that his Motion under 28 U.S.C. ' 2255 will be subject
to dismissal unless he shows cause, within thirty days of the date this Order is entered,
why his Motion should not be dismissed as untimely. In particular, Movant is advised
that his Motion will be dismissed unless he presents to the Court evidence that he has
diligently pursued his rights and extraordinary circumstances preventing timely filing
existed. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010)
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Only if he presents such
evidence may the Court toll the one-year limitation period. Id. Movant should be aware,
however, that “the threshold necessary to trigger equitable tolling … is very high.” Id.
(citing Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006)).
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Movant’s Motion pursuant
to 28 U.S.C. ' 2255 will be dismissed unless he shows cause, within 30 days of the date
this Order is entered, why his Motion should not be dismissed as untimely.

DATED: August 27, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 2