Austin v. United States of America

Filing 2

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that no order to show cause shall issue at this time as to respondent, because the instant motion appears to be time-barred. IT IS FURTHER ORDERED that movant shall show cause within thirty(30) days of the da te of this Order as to why the Court should not dismiss the instant motion as time-barred. Movants failure to file a show cause response shall result in the denial of the instant motion to vacate and the dismissal of this action as time-barred. Show Cause Response due by 11/18/2012. Signed by District Judge Jean C. Hamilton on 10/18/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHARON M. AUSTIN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12-CV-1826-JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Sharon M. Austin to
vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. #1].
On December 14, 2006, a jury convicted petitioner of one count of
conspiracy to distribute and possess with the intent to distribute methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of conspiracy to
launder money in violation of 18 U.S.C. § 1956(a)(1)(A)(i). She was sentenced on
March 2, 2007, to 120 months’ imprisonment and 5 years of supervised release. The
United States Court of Appeals for the Eighth Circuit affirmed the judgment on
February 24, 2009, and the mandate issued on March 30, 2009.
Movant seeks relief from her conviction and sentence on the grounds that she
has engaged in programming and has “around 50 certificates,” she needs to be home

to help her elderly mother, who has a heart condition, she has “worked Unicor up
until [the] last 3 mo.,” and she has no incident reports.
Discussion
Rule 4(b) of the Rules Governing § 2255 Cases in 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.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2255 now provides:
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.

2

A review of the instant motion indicates that it is time-barred under 28 U.S.C.
§ 2255(1) and subject to summary dismissal. Movant’s conviction became final in
2009, but she did not file this motion to vacate until September 2012. Thus, it
appears that this motion to vacate is untimely.
Because movant has not advanced an explanation that warrants tolling of the
one-year statute of limitations,1 the Court will order her to show cause within thirty
days of the date of this Order as to why this matter should not be dismissed as
untimely.
Accordingly,
IT IS HEREBY ORDERED that no order to show cause shall issue at this
time as to respondent, because the instant motion appears to be time-barred.
IT IS FURTHER ORDERED that movant shall show cause within thirty
(30) days of the date of this Order as to why the Court should not dismiss the instant
motion as time-barred. Movant’s failure to file a show cause response shall

1

Movant claims that this action is untimely because she “[d]idn’t know about
the 2255.” This explanation does not warrant equitable tolling.
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result in the denial of the instant motion to vacate and the dismissal of this action as
time-barred.
Dated this 18th day of October, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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