Reed v. USA

Filing 2

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than twenty-one (21) days from the date of this Order, why the instant§ 2255 motion should not be dismissed as time-barred.IT IS FURTHER ORDERED that ifmovant fails to comply with this Order, his§ 2255motion will be denied and dismissed as time-barred. Show Cause Response due by 11/14/2017. Signed by District Judge John A. Ross on 10/24/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DEIDRICK REED,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:17-CV-181 JAR

MEMORANDUM AND ORDER

This matter is before the Court on movant Deidrick Reed's motion to vacate, set aside or
correct his sentence under 28 U.S.C. § 2255. The motion appears to be time-barred, and the
Court will order movant to show cause why his motion should not be summarily dismissed.
Background

On March 20, 2014, movant was charged in a three-count Indictment: Count I charged
movant with Maliciously Conveying False Information Regarding an Explosive Device, in
violation of 18 U.S.C. § 844(e); Count 2 charged movant with Bank Robbery through the use of
a Dangerous Weapon, in violation of 18 U.S.C. § 2113(a), 18 U.S.C. § 2113(d); and Count 3
charged movant with the Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(l)(A)(ii).
On June 17, 2014, movant pleaded guilty to all three counts of the Indictment. The Court
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sentenced defendant on September 15, 2014, to a total of 180 months' imprisonment. Defendant
did not appeal his conviction or sentence.

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The term consisted of 96 months' imprisonment on each of Counts 1 and 2, all such terms to be
served concurrently to each other, and 84 months' imprisonment on Count 3, to be served

More than three years later, on October 10, 2017, movant filed the instant motion to
vacate brought pursuant to 28 U.S.C. § 2255, asserting that he is "entitled to a resentencing
following the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017).
Legal Standard

Rule 4(b) of the Rules Governing § 2255 Proceedings for 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.
Under 28 U.S.C. § 2255(f):
A I-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 malting 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.

consecutively to the sentence imposed in Counts 1 and 2, for an aggregate prison term of 180
months.

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Discussion
Turning first to application of § 2255(f)(l ), as a general matter, convictions become
"final" upon conclusion of direct review. See Sanchez-Castellano v. United States, 358 F.3d 424,
426 (6th Cir. 2004). "[W]hen a federal criminal defendant does not appeal to the court of
appeals, the judgment becomes final upon the expiration of the period in which the defendant
could have appealed to the court of appeals, even when no notice of appeal was filed." Id.
Here, the judgment was entered on September 15, 2014, and it became final fourteen
days later, on September 29, 2014. See Fed. R. App. P. 4(b)(l)(a) (providing for a 144iay period
in which to file an appeal in a criminal case). Defendant did not file his § 2255 motion until
October 10, 2017, some years after the one-year limitations period expired.
The Court turns next to whether a later filing is permitted under application of §
2255(f)(3). Defendant relies on the April 3, 2017 issuance of the Supreme Court's opinion in

Dean v. United States, 137 S.Ct. 1170 (2017).
Application of § 2255(f)(3) depends on whether any newly recognized right is
''retroactively applicable to cases on collateral review." The Eighth Circuit Court of Appeals has
not addressed the retroactivity of Dean.
Defendant appears to argue that this Court should make its own retroactivity
determination and decide that he is entitled to resentencing under Dean. However, other courts
have held that "there is nothing in the Supreme Court's opinion in Dean to suggest that the
holding is to be applied retroactively to cases on collateral review." Simmons v. Terris, No. l 7cv-11771, 2017 WL 3017536, at *2 (E.D. Mich. July 17, 2017). See also In re Dockery, No. 1750367, 2017 WL 3080914, at * 1 (5th Cir. July 20, 2017) (denying certification because the
defendant had not "made a prima facie showing that Dean announced a new rule of

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constitutional law that was made retroactive to cases on collateral review"); Hall v. United

States, No. 17-C-3892, 2017 WL 3235438, at *3 (N.D. Ill. July 31, 2017) ("The Dean Court
made no mention of applying its holding retroactively to cases on collateral review, and the
United States Court of Appeals for the Seventh Circuit has yet to address whether courts should
apply Dean as such."); United States v. Adams, No. 7:06-cr-22-1, 2017 WL 2829704, at *2
(W.D. Va. June 29, 2017) (dismissing § 2255 motion as untimely filed because Dean does not
apply retroactively to § 2255 proceedings under the criteria discussed in Teague v. Lane, 489
U.S. 288, 311-16, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); United States v. Payne, No. 94-CR150 TCK, 2017 WL 3730612, at *1 (N.D. Okl August 29, 2017).
In short, movant has not demonstrated that Dean triggers the longer limitations period in
§ 2255(f)(3). As such, movant shall show cause, in writing and no later than twenty-one (21)
days from the date of this Order, why the instant§ 2255 motion should not be dismissed as timebarred.
Accordingly,

IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than
twenty-one (21) days from the date of this Order, why the instant§ 2255 motion should not be
dismissed as time-barred.

IT IS FURTHER ORDERED that ifmovant fails to comply with this Order, his§ 2255
motion will be denied and dismissed as time-barred.
Dated this 24th day of October, 2017.

A. ROSS
ITED STATES DISTRICT JUDGE

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