Gipson v. USA
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 if movant fails to comply with this Order, his § 2255 motion will be dismissed without further proceedings. Show Cause Response due by 5/2/2018.. Signed by District Judge Stephen N. Limbaugh, Jr on 4/11/18. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
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, and the
Court will order movant to show cause why the motion should not be summarily
On April 19, 2016, movant pled guilty to Interference With Commerce by Threat
or Violence and Possession of a Firearm in Furtherance of a Crime of Violence. On July
26, 2016, the Court sentenced movant to 154 months’ imprisonment. Movant did not
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 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
(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
(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
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.
A review of the instant motion indicates that it is time-barred under 28 U.S.C.
§ 2255(f)(1) and is subject to summary dismissal. An unappealed criminal judgment
becomes final for purposes of calculating the time limit for filing a motion under § 2255
when the time for filing a direct appeal expires. Moshier v. United States, 402 F.3d 116,
118 (2nd Cir. 2005). In this case, the judgment became final fourteen days after the
judgment was entered on July 26, 2016. Fed. R. App. Proc. 4(b)(1). As a result, the oneyear period of limitations under § 2255 expired on August 9, 2017. The instant motion
was placed in the prison mail system by movant on April 3, 2018. Therefore, it appears
to be time-barred.
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 if movant fails to comply with this Order, his
§ 2255 motion will be dismissed without further proceedings.
Dated this 11th day of April, 2018.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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