Boyce v. United States of America
MEMORANDUM AND ORDER TO SHOW CAUSE: IT IS HEREBY ORDERED that movant shall show cause in writing within thirty (30) days of the date of this Order as to why her motion to vacate should not be dismissed as time-barred. Show Cause Response due by 10/29/2012. Signed by District Judge Rodney W. Sippel on 9/28/12. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER TO SHOW CAUSE
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 barred by
the one-year period of limitations. As a result, the Court will order movant to show
cause as to why the motion should not be dismissed.
On November 8, 2007, after pleading guilty to distribution of five or more
grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846, the Court
sentenced movant to 210 months’ imprisonment to be followed by five years’
supervised release. See United States v. Boyce, No. 4:-07-CR-240-RWS (E.D. Mo.).
On January 9, 2008, the United States Court of Appeals for the Eighth Circuit
summarily disposed of movant’s appeal pursuant to Eighth Circuit Rule 47A(b); the
mandate issued on January 30, 2008.
Movant seeks relief from her conviction and sentence on the ground that she
received ineffective assistance of counsel. In this regard, movant summarily claims
that the United States Supreme Court’s decisions in Missouri v. Frye, 132 S. Ct. 1399
(2012) and Lafler v. Cooper, 132 S. Ct. 1376 (2012), constitute new rules of
constitutional law that should be retroactively applied to her motion to vacate.
Rule 4(b) of the Rules Governing § 2255 Proceedings 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
(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 due diligence.
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. Movant’s direct appeal became final
in 2008; however, the instant motion to vacate was not filed until September 1, 2012,
the date on which movant indicates she placed the motion in the prison mailing
system. Although movant argues that the instant action should be considered timely
in light of the Supreme Court’s recent decisions in Frye1 and Cooper,2 there is no
indication that those cases are relevant to movant’s circumstances, and in any event,
the cases do not announce new rules of constitutional law, but rather, are simply “an
application of the Sixth Amendment right to counsel, as defined in Strickland3 to a
specific factual context.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012). As such,
In Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), the Supreme Court held
that, as a general rule, “defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable
to the accused.”
In Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012) , the Supreme Court held,
“If a plea bargain has been offered, a defendant has the right to effective assistance
of counsel in considering whether to accept it. If that right is denied, prejudice can
be shown if loss of the plea opportunity led to a trial resulting in a conviction on more
serious charges or the imposition of a more severe sentence.”
Strickland v. Washington, 466 U.S. 668 (1984).
the Court will order movant to show cause as to why this action should not be
dismissed as time-barred.
Respondent will not be ordered to respond to the motion to vacate at this time.
IT IS HEREBY ORDERED that movant shall show cause in writing within
thirty (30) days of the date of this Order as to why her motion to vacate should not be
dismissed as time-barred.
Dated this 28th day of September, 2012.
UNITED STATES DISTRICT JUDGE
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