DeMint v. USA

Filing 4

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that movant shall show cause no later than March 28, 2014, why this action should not be dismissed as time-barred. Show Cause Response due by 3/28/2014. Signed by District Judge John A. Ross on 2/28/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOSEPH WILLIAM DEMINT,
Movant,

UNITED STATES OF AMERICA,
Respondent,

)
)
)
)
)
)
)
)
)

No. 1:14CV19 JAR

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. The motion is barred by the one-year limitations
period, and the Court will order movant to show cause why it should not be dismissed.
In March 1995 a jury found movant guilty on one count of being a felon in
possession of a firearm. United States v. DeMint, 1:94CR41 SNLJ (E.D. Mo.). In June
1995 the Court sentenced movant under the Armed Career Criminal Act to 290 months’
imprisonment because movant had three prior qualifying violent felony convictions. On
appeal, movant argued that his prior convictions did not qualify under the ACCA. The
United States Court of Appeals for the 8th Circuit examined each conviction in turn and
affirmed, finding that “the district court correctly concluded [movant] was subject to an
enhancement under the ACCA.” United States v. DeMint, 74 F.3d 876, 878 (8th Cir.
1996).
In the instant motion, movant alleges, in a wholly conclusory manner, that the
Court erred when it found that his prior state convictions qualified as violent felonies for

the purposes of the ACCA. And he claims that the 8th Circuit violated his due process
rights by affirming this Court’s decision. He offers no legal authority to support his
argument.

He also claims that a juror was coerced or was unconvinced by the

government’s arguments, but he does not state why this is relevant to his position.
Under 28 U.S.C. ' 2244(d):
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest ofB
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review
...
The one-year period of limitations for filing habeas petitions did not exist when
petitioner was convicted, or prior to enactment of the AEDPA on April 24, 1996. In
addressing this issue, the United States Court of Appeals for the Eighth Circuit has “held
that time before the effective date of AEDPA, April 24, 1996, is not counted in
computing the one-year period of limitation [under ' 2244(d)].

Prisoners whose

judgments of conviction became final before the effective date of AEDPA are given a
one-year period after that date, or until April 24, 1997, plus any additional periods during
which the statute is tolled.” Peterson v. Gammon, 200 F.3d 1202, 1204 (8th Cir. 2000).
In this case, the limitations period has been expired for a very long time.

2

The Court is required to give movant notice before it dismisses this action as timebarred. As a result, movant shall show cause no later than March 28, 2014, why this
action should not be summarily dismissed.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause no later than March
28, 2014, why this action should not be dismissed as time-barred.
Dated this 28th day of February, 2014.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

3