Campuzano-Tinoco 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 if movant fails to comply with this Order, his § 2255 motion will be dismissed. Show Cause Response due by 9/21/2012. Signed by District Judge Stephen N. Limbaugh, Jr on 8/31/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GABRIEL CAMPUZANO-TINOCO,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12CV1512 SNLJ

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 dismissed.
On March 9, 2011, movant pled guilty to possession with intent to distribute
more than five kilograms of cocaine. On June 29, 2011, the Court sentenced movant
to a total term of 120 months’ imprisonment. Movant did not appeal.
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:

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.
A review of the instant motion indicates that it is time-barred under 28 U.S.C.
§ 2255(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

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F.3d 116, 118 (2nd Cir. 2005). In this case, the judgment became final fourteen days
after the judgment was entered on June 29, 2011. Fed. R. App. Proc. 4(b)(1). As a
result, the one-year period of limitations under § 2255 expired on about July 12,
2012. The instant motion was signed by movant on August 14, 2012.
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 if movant fails to comply with this Order,
his § 2255 motion will be dismissed.
Dated this 31st day of August, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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