Warren v. United States of America

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the government's motion to dismiss 2 is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED. An Order of Dismissal will be filed with this Memorandum and Order. Signed by District Judge E. Richard Webber on February 13, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEN WARREN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12CV02188 ERW

MEMORANDUM AND ORDER
This matter is before the Court on the government’s motion to dismiss. The
government contends that movant’s motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255 is barred by the limitations period. The Court ordered movant
to respond to the government’s motion on two occasions, but movant has failed to do
so. Having reviewed the case file, the Court finds that the § 2255 motion is timebarred.
On September 13, 2007, movant was indicted on one count of felon in
possession of a firearm. Movant pled guilty on May 23, 2008. On October 10, 2008,
the Court sentenced movant to 180 months’ imprisonment and three years of supervised
release. Petitioner appealed, and the Eighth Circuit Court of Appeals issued its
Judgment affirming the sentence on December 10, 2009. Movant filed the instant §
2255 motion on November 19, 2012.

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.
For a defendant who does not file a petition for a writ of certiorari, the judgment
of conviction becomes final when the time for filing a certiorari petition with the United
States Supreme Court expires. Clay v. United States, 537 U.S. 522, 527 (2003).
Under the Rules of the Supreme Court of the United States, the time to file a petition
for writ of certiorari is ninety days after the date of entry of the judgment appealed
from. Supreme Court Rule 13(1). The time does not run from the date of mandate.
Supreme Court Rule 13(3); Clay, 537 U.S. at 527, 529. A § 2255 movant therefore has

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one year and ninety days from the judgment of the appellate court within which to file
a § 2255 motion.
The one-year period expired on March 10, 2011, which is one year and ninety
days after the Court of Appeals issued its Judgment. As a result, movant’s § 2255
motion is untimely, unless he can demonstrate that he is entitled to equitable tolling.
In his motion, movant appears to argue that his motion was delayed by
institutional staff by “a few days time.” This claim, however, does not entitle movant
to equitable tolling because his motion is out of time by well over one year. As a result,
the Court will dismiss this action without further proceedings.
Finally, movant has failed to demonstrate that jurists of reason would find it
debatable whether the motion is untimely. Thus, the Court will not issue a certificate
of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the government’s motion to dismiss [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
An Order of Dismissal will be filed with this Memorandum and Order.
So Ordered this 13th day of February, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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