McFarland v. USA

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall show cause in writing within thirty (30) days of the date of this Order as to why his 28 U.S.C. 2255 motion to vacate should not be dismissed as time-barred. If movant fails to respond, the Court will dismiss this action as untimely. Show Cause Response due by 7/17/2014. Signed by District Judge Stephen N. Limbaugh, Jr on 6/17/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RODNEY L. MCFARLAND,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 1:14-CV-65-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Rodney L. McFarland to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. ' 2255.
Movant pleaded guilty to one count of possession of a firearm in violation of
18 U.S.C. ' 924(c)(1)(A), and one count of possession with intent to distribute
cocaine base in violation of 21 U.S.C. ' 841(a)(1), (b)(1)(C). He was sentenced on
April 10, 2013, to ninety-seven months= imprisonment and three years of supervised
release. Movant did not appeal. In the instant action, movant seeks relief from his
conviction and sentence on two grounds of ineffective assistance of counsel.
Discussion
Rule 4(b) of the Rules Governing ' 2255 Cases in the United States District
Courts provides that a District Court may summarily dismiss a ' 2255 motion if it
plainly appears that the movant is not entitled to relief.

As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. ' 2255 now provides:
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 review of the instant motion indicates that it is time-barred under 28 U.S.C.
' 2255(1) and subject to summary dismissal. Movant=s conviction became
final on April 24, 2013, fourteen days after his April 10, 2013 sentencing; however,
he did not file the instant motion to vacate until May 13, 2014, the date movant
placed the motion in the prison mailing system. Thus, it appears that the motion to

2

vacate is untimely.1 See Fed.R.App.P. 4(b)(1)(A); 28 U.S.C. § 2255(f)(1,4);
Anjulo-Lopez v. U.S., 541 F.3d 814, 816 n.2 (8th Cir. 2008) (citing Moshier v. U.S.,
402 F.3d 116, 118 (2d Cir. 2005) (unappealed criminal judgment becomes final for
purposes of calculating one-year limitations period specified in § 2255 when the
period for filing a notice of appeal expires)).
Before taking any further action, the Court will order movant to show cause as
to why this action should not be dismissed as time-barred.
Respondent will not be ordered to respond to the motion to vacate at this time.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause in writing within
thirty (30) days of the date of this Order as to why his 28 U.S.C. ' 2255 motion to
vacate should not be dismissed as time-barred. If movant fails to respond, the Court
will dismiss this action as untimely.
Dated this 17th day of June, 2014.

UNITED STATES DISTRICT JUDGE

1

Movant is incorrect in stating that his deadline for filing this action is July 10, 2014
[Doc. #1, p. 12 of 26].
3