Cruz-Zuniga v. USA

Filing 4

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Horacio Cruz-Zuniga; motion is DENIED without prejudice. An Order of Dismissal will be filed with this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 4/3/13. (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 me on movant’s “motion in response to court’s
Memorandum and Order.” I previously ordered movant to show cause why his
motion to vacate under § 2255 should not be dismissed as time-barred, and I ordered
him to file an amended motion to vacate if he wished to continue with this case.
Movant has informed me that I mistakenly construed his motion to extend the time
to file a § 2255 motion as a motion to vacate under § 2255. Movant requests that I
rule the motion to extend regardless of the fact that he has not filed a motion to
vacate. Additionally, he has failed to file an amended motion as I directed.
For a district court to have jurisdiction over a motion to extend the time to file
a § 2255 motion, the motion “must be either be filed concurrently with or after a
§ 2255 petition, or be construed as the § 2255 petition itself.” Ramirez v. United
States, 461 F. Supp. 2d 439, 441 (E.D. Va. 2006). The court is permitted to construe

a motion for extension of time as a § 2255 motion when it “contains allegations
sufficient to support a claim under section 2255.” Id.
In this case, movant’s motion for extension of time does not contain sufficient
allegations for the Court to construe it as a § 2255 motion. As a result, the motion
will be denied.
Accordingly,
IT IS HEREBY ORDERED that movant’s motion for extension of time [Doc.
1] is DENIED without prejudice.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 3rd day of April, 2013.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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