Cole v. USA

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall show cause in writing within thirty (30) days of the date of this Order why his 28 U.S.C. ' 2255 motion to vacate should not be dismissed as time-barred. If movant fails to comply, the Court will dismiss this action as untimely. Show Cause Response due by 7/24/2014. Signed by District Judge Stephen N. Limbaugh, Jr on 6/24/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JEROME N. COLE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:14-CV-84-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Jerome N. Cole to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. ' 2255.
Movant pleaded guilty to one count of being a felon in possession of a firearm
in violation of 18 U.S.C. ' ' 922(b)(1) and 924(a)(2). He was sentenced on
February 19, 2013, to sixty-three 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 the grounds that he was convicted based
on fabricated evidence, his guilty plea was coerced, his sister was coerced into being
a witness against him, and he received 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

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final on March 5, 2013, fourteen days after his February 19, 2013 sentencing;
however, he did not file the instant motion to vacate until June 8, 2014. Thus, it
appears that the motion to vacate is untimely. 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 why his 28 U.S.C. ' 2255 motion to vacate
should not be dismissed as time-barred. If movant fails to comply, the Court will
dismiss this action as untimely.
Dated this 24th day of June, 2014.

UNITED STATES DISTRICT JUDGE

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