Capps v. USA

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall file with the court the documents he described in his October 24, 2014 submission, and any other documents demonstrating why his § 2255 motion should not be dismissed as time-barred, no later than twenty-one (21) days from the date of this Order.IT IS FURTHER ORDERED that if movant fails to comply with this Order, his ' 2255 motion will be dismissed. Response to Court due by 11/28/2014. Signed by District Judge Audrey G. Fleissig on 11/6/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DENNIS RAY CAPPS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:14-CV-0144-AGF

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 time-barred.
Movant was found guilty by a jury on May 30, 2012, on one count of possession with intent
to distribute fifty grams or more of methamphetamine. On January 22, 2013, the Court sentenced
movant to life imprisonment. Movant appealed, and the Eighth Circuit Court of Appeals issued its
final judgment affirming the sentence on June 11, 2013. Movant filed the instant § 2255 motion on
October 7, 2014, which is the date he placed it in the prison’s mail system.
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. 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 June 11,
2013. The limitations period ended, therefore, on September 9, 2014, four hundred fifty-five days
after the judgment was entered. As a result, the motion appears to be barred by the limitations
period.
On October 16, 2014, the Court ordered movant to show cause, by November 6, 2014, why
the motion should not be summarily dismissed. By submission filed on October 24, 2014, movant
advised the Court that he hired a law firm to prepare and file his § 2255 motion, paid in full,
followed up with the law firm to express his concerns about the timeliness of the motion, and was
reassured that it would be timely filed. Ultimately, movant filed his untimely §2255 motion pro se.
Movant asserts that he is currently in the S.H.U. on lock down and does not have access to

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copies of his correspondence with the law firm or his receipt. As of October 24, 2014, movant did
not know when he would regain access to this documentation.
Accordingly,
IT IS HEREBY ORDERED that movant shall file with the court the documents he
described in his October 24, 2014 submission, and any other documents demonstrating why his §
2255 motion should not be dismissed as time-barred, no later than twenty-one (21) days from the
date of this Order.
IT IS FURTHER ORDERED that if movant fails to comply with this Order, his ' 2255
motion will be dismissed.
Dated this 6th day of November, 2014.

__________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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