Gray v. United States of America
MEMORANDUM - Because movant did not obtain permission from the Eighth Circuit Court of Appeals to maintain the instant § 2255 motion, which is successive, this Court lacks authority to grant movant the relief he seeks. Therefore, his motion to vacate will be dismissed. See Rule 4(b) of the Rules Governing § 2255 Proceedings. Signed by District Judge Carol E. Jackson on 1/8/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
This matter is before the Court upon review of Robert Gray’s “Motion to
Vacate and Reenter the Judgment in a Criminal Case,” which the Court will liberally
construe as a motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. §
On October 10, 2008, following his guilty plea to being a felon in possession
of a firearm, movant was sentenced to a 77-month term of imprisonment. U.S. v.
The Court determines that it is not required to provide movant an
opportunity either to consent to the reclassification or to withdraw his motion, see
United States v. Morales, 304 F.3d 764 (8th Cir. 2002), because, unlike the facts
in Morales, the motion at bar is movant’s third § 2255 motion, not his first. As
such, providing him a Morales-type warning and opportunity to withdraw the
instant motion at this time would be of no avail to him.
Gray, No. 4:08-CR-173-CEJ (E.D. Mo.). He did not appeal the judgment. In the
instant action, movant seeks relief from his conviction and sentence on the ground
that his attorney ignored his request to file a timely notice of appeal.
The Court’s records indicate that movant filed a motion to vacate, set aside or
correct his sentence, pursuant to 28 U.S.C. § 2255 on December 18, 2009. Gray v.
U.S., No. 4:09-CV-2081-CEJ (E.D. Mo.). On May 7, 2010, the Court denied
movant’s motion to vacate as time-barred and dismissed the action.2 Movant did not
file an appeal of the dismissal. In addition, on March 26, 2012, movant filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Gray v. U.S., No.
4:12-CV-563-CEJ (E.D. Mo.). This Court construed the petition as a motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Because movant
had not obtained permission from the Eighth Circuit Court of Appeals to file a second
Although unpublished, opinions by the Eighth Circuit Court of Appeals and
by other district courts in this circuit have uniformly held that a motion dismissed
as untimely is a decision on the merits. See Diaz-Diaz v. U.S., 297 Fed. Appx.
574, 575 (8th Cir. Oct. 29, 2008); Young v. Norman, No. 4:10-CV-2186-DDN,
2010 WL 5184886, at*1 (E.D. Mo. Dec. 15, 2010); Hazelett v. U.S., No. 4:10-CV2214-JCH, 2010 WL 5184888, at *1 (E.D. Mo. Dec. 15, 2010). Similarly, several
other courts of appeals have held that a dismissal on statute of limitations grounds
constitutes a decision on the merits. See McNabb v. Yates, 576 F.3d 1029, 1030
(9th Cir. 2009); Villanueva v. U.S., 346 F.3d 55, 61 (2d Cir. 2003); Altman v.
Benik, 337 F.3d 764, 766 (7th Cir. 2003).
habeas action, the motion to vacate was dismissed as successive. Movant did not file
an appeal of the dismissal.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2255 now provides that a "second or successive motion
must be certified . . . by a panel of the appropriate court of appeals" to contain certain
information. Title 28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application."
Because movant did not obtain permission from the Eighth Circuit Court of
Appeals to maintain the instant § 2255 motion, which is successive, this Court lacks
authority to grant movant the relief he seeks. Therefore, his motion to vacate will be
dismissed. See Rule 4(b) of the Rules Governing § 2255 Proceedings.
Dated this 8th day of January, 2013.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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