Moody v. United States of America

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant's motion to vacate, set aside, or correct sentence pursuant to 28 USC Section 2255 1 is DISMISSED; Signed by Judge Stephen N. Limbaugh on 1/27/06 (CMA)

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Moody v. United States of America Doc. 2 Case 4:06-cv-00080-SNL Document 2 Filed 01/27/2006 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION RICHARD MOODY, Movant, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) No. 4:06CV80(SNL) MEMORANDUM AND ORDER This matter is before the Court upon the motion of Richard Moody to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 [Doc. #1]. Background Movant pleaded guilty to conspiracy to manufacture methamphetamine and conspiracy to possess pseudoephedrine. United States v. Moody, No. 4:03CR278(SNL) (E.D. Mo.). On See November 4, 2003, movant was sentenced to two concurrent terms of 168 months imprisonment to be followed by a total of five years supervised release. or sentences. The motion Movant alleges that his convictions and sentences are invalid under the Supreme Court's decision in Booker v. United States, 125 S. Ct. 738 (2005). Id. Movant did not appeal his convictions Dockets.Justia.com Case 4:06-cv-00080-SNL Document 2 Filed 01/27/2006 Page 2 of 3 Discussion Title 28 U.S.C. 2255 now provides that a one-year period of limitations applies to 2255 motions. As applied to this case, movant had until approximately November 14, 2004, to file a 2255 motion. until January 17, 2006. untimely. The instant 2255 motion was not filed Therefore, the instant 2255 motion is Movant argues that the instant motion is timely under 2255(3) which provides that the limitations period may run from "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." 28 U.S.C. 2255(3). The Supreme Court's decision in Booker, however, does not apply retroactively to cases on collateral review. See Never Misses A Shot v. United States, 413 F.3d 781, 783-85 (8th Cir. 2005). In accordance with the foregoing, IT IS HEREBY ORDERED that movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 [Doc. #1] is DISMISSED. 2 Case 4:06-cv-00080-SNL Document 2 Filed 01/27/2006 Page 3 of 3 An appropriate order shall accompany this memorandum and order. Dated this 27th day of January, 2006. SENIOR UNITED STATES DISTRICT JUDGE 3

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