Cruz-Zuniga v. USA

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall show cause no later than thirty days from the date of this Order why this action should not be dismissed as timebarred. IT IS FURTHER ORDERED that the Clerk shall send movant a copy of the 28 U.S.C. § 2255 form. IT IS FURTHER ORDERED that movant shall submit an amended § 2255 motion within thirty days of the date of this Order. IT IS FURTHER ORDERED that if movant fails to comply with this Order,the Court will dismiss this action without further proceedings. Response to Court due by 8/13/2012. Signed by Honorable Rodney W. Sippel on 7/13/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
HORACIO CRUZ-ZUNIGA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:12-CV-0118-RWS

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. The motion appears to be untimely.
As a result, the Court will order movant to show cause why the motion should not be
summarily dismissed.
Movant was convicted of conspiracy to distribute methamphetamine. On
September 10, 2008, the Court sentenced movant to 480 months’ imprisonment. The
Eighth Circuit Court of Appeals affirmed the sentence, and on July 1, 2009, the
appellate court issued its final judgment. Movant did not file a petition for writ of
certiorari.
Under 28 U.S.C. § 2255:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of--

(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
A district court may consider, on its own initiative, whether a habeas action is
barred by the statute of limitations. Day v. McDonough, 547 U.S. 198, 210 (2006).
However, before dismissing a habeas action as time-barred, the court must provide
notice to the movant. Id.
For a defendant who does not file a petition for a writ of certiorari, the judgment
of conviction becomes final when the time for filing a certiorari petition with the United
States Supreme Court expires. Clay v. United States, 537 U.S. 522, 527 (2003).
Under the Rules of the Supreme Court of the United States, the time to file a petition
for writ of certiorari is ninety days after the date of entry of the judgment appealed
from. Supreme Court Rule 13(1). The time does not run from the date of mandate.
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Supreme Court Rule 13(3); Clay, 537 U.S. at 527, 529. A § 2255 movant therefore has
one year and ninety days from the judgment of the appellate court within which to file
a § 2255 motion.
As stated above, the Eighth Circuit Court of Appeals issued its final judgment
on July 1, 2009. The limitations period ended, therefore, on September 29, 2010, one
year and ninety days after the judgment was entered. As a result, the motion appears
to be barred by the limitations period.
Additionally, the motion to vacate is defective because it does not contain any
cognizable grounds for relief. If movant wishes to continue this action, he must file an
amended petition on the court form listing all of his grounds for relief.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause no later than thirty
days from the date of this Order why this action should not be dismissed as timebarred.
IT IS FURTHER ORDERED that the Clerk shall send movant a copy of the
28 U.S.C. § 2255 form.
IT IS FURTHER ORDERED that movant shall submit an amended § 2255
motion within thirty days of the date of this Order.

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IT IS FURTHER ORDERED that if movant fails to comply with this Order,
the Court will dismiss this action without further proceedings.
Dated this 13

day of July, 2012.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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