United States of America V. Gaya

Filing 7

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 11/27/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSE GAYA #19152-424,
Defendant.

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No.

12 C 9268

MEMORANDUM ORDER
Jose Gaya (“Gaya”) has filed a self-prepared 28 U.S.C. §2255
(“Section 2255”) motion to vacate his conviction and the lengthy
sentence he is now serving based on a December 9, 2009 conviction
in a trial before this Court’s former colleague Honorable Wayne
Andersen.

Gaya’s motion and related documents have been assigned

at random to this Court’s calendar because Judge Andersen has
since retired.

This memorandum order deals with several aspects

of Gaya’s filing.
First, although Gaya has accompanied his motion with an
Application To Proceed In Forma Pauperis (“Application”), that
aspect of his submissions is of no moment.

No filing fee is

imposed in connection with a Section 2255 motion, so that the
Application is denied as moot.
Next, this Court has reviewed Gaya’s papers to see whether
they face any problems of timeliness, because Paragraph 16(a)(6)
of his motion misrepresents the date on which our Court of
Appeals denied his motion for rehearing there after its

affirmance of his conviction in United States v. Gaya, 647 F.3d
634 (7th Cir. 2011).

Gaya alleges that the date of denial was

November 28, 2011, but this Court has obtained a copy of the
Court of Appeals’ unpublished order denying that petition--and
that order bears an August 22, 2011 date.1
Section 2255(f)(1), which applies in this case, sets a oneyear limitation period measured from “the date on which the
judgment of conviction becomes final.”

In that respect Clay v.

United States, 537 U.S. 522, 532 (2003) teaches “that, for
federal criminal defendants who do not file a petition for
certiorari with this court on direct review, Section 2255’s oneyear limitation period starts to run when the time for seeking
such review expires.”

And Sup. Ct. R. 13.1 grants a 90-day

period for the filing of a petition for a writ of certiorari,
while Sup. Ct. R. 13.3 starts that 90-day clock when a timelyfiled petition for rehearing in the lower court (here our Court
of Appeals) has been denied.
What the interaction of those rules means is that “finality”
in Gaya’s case came 90 days after August 22, 2011, or November 20
of that year.

And that in turn means that even without the

benefit of whatever added time the “mailbox rule” (Houston v.
Lack, 487 U.S. 266 (1988)) might have provided, Gaya’s

1

That August date is shown as well in the Court of
Appeals’ docket that this Court has also printed out.
2

November 19, 2012 filing of his Section 2255 motion came in just
under the wire.
That then gets the threshold procedural matters out of the
way (although the United States Attorney’s Office is of course
free to challenge what this memorandum order has said up to this
point).

As to substance, this Court’s preliminary review called

for by Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts indicates that an answer or
other response is called for, and the United States Attorney’s
Office is therefore ordered to file an answer, motion or other
response on or before January 18, 2013.2

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

November 27, 2012

2

Also included in Gaya’s initial filings is a motion for
leave to amend his Section 2255 motion, explaining that he has
not received his records and files from his counsel. No action
will be taken on that motion at this time, both because the
requested documents may be forthcoming in the near future and
because a better sense of the matter should be provided by the
government’s response.
3