Vazquez-Rodriguez v. United States of America

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than thirty (30) 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.. Signed by District Judge Rodney W. Sippel on 11/20/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAMON VAZQUEZ-RODRIGUEZ,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12CV2058 RWS

MEMORANDUM AND ORDER
This matter is before me 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
I will order movant to show cause why the motion should not be summarily
dismissed.
On September 30, 2010, movant pled guilty to conspiracy to distribute with the
intent to distribute in excess of 100kg of marijuana and interstate travel in aid of
racketeering. On December 20, 2010, I sentenced defendant to a prison term of 66
months. No appeal was taken.
Movant filed the instant motion on November 1, 2012. Movant’s sole ground
for relief is that his attorney was ineffective for failing to file a notice of 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.
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.
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.

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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
F.3d 116, 118 (2nd Cir. 2005). In this case, the judgment became final fourteen days
after the judgment was entered on December 20, 2010. Fed. R. App. Proc. 4(b)(1).
As a result, the one-year period of limitations under § 2255 expired on about January
3, 2012. The instant motion was signed by movant on October 23, 2012.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause, in writing and no
later than thirty (30) 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 20th day of November, 2012.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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