Chapman v. United States of America

Filing 4

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that movant shall show cause within twenty-one (21) days of the date of this Order why this action should not be dismissed as timebarred. IT IS FURTHER ORDERED that if movant fai ls to comply with this Order, this action will be dismissed. IT IS FURTHER ORDERED that the governments motion to dismiss [ECF No. 2 ] is DENIED. (Show Cause Response due by 5/6/2013.) Signed by District Judge E. Richard Webber on 04/15/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL CHAPMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 4:13CV00308 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Paul Chapman’s motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. After reviewing the motion, the Court will
direct movant to show cause why it should not be dismissed as untimely.
Background
On March 3, 2005, movant pled guilty to possession of child pornography, and
on May 25, 2005, the Court sentenced movant to an aggregate term of twenty-one
months’ imprisonment followed by five years of supervised release. United States v.
Chapman, 4:05CR117 ERW (E.D. Mo.). Movant did not appeal.
On March 2, 2010, the Court revoked movant’s supervised release and
sentenced him to be imprisoned for six months followed by lifetime supervised release.
Movant did not appeal the judgment for revocation.

On February 12, 2013, movant filed his § 2255 motion. The motion is inartfully
drafted, which makes it difficult to discern whether he is attacking the 2005 judgment
or the 2010 judgment. A close reading, however, reveals that movant is attacking the
2010 judgment. Movant claims that the life term of supervised release violates the
Eighth Amendment’s prohibition on cruel and unusual punishment, his Thirteenth
Amendment rights, and his “civil and human rights.”
Standard
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.
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

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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 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.
Discussion
The limitations period began to run ten days after the judgment was entered, on
or about March 12, 2010. See Fed. R. App. Proc. 4(b)(1). The limitations period
ended, therefore, on or about March 12, 2011. As a result, the § 2255 motion appears
to be time-barred.
Movant shall have twenty-one days to show cause why the instant action should
not be summarily dismissed. If movant fails to show adequate cause, or if he fails to
timely respond to this Order, the Court will dismiss this action without further
proceedings.

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The Court notes that the government filed a motion to dismiss based on
untimeliness. The government’s motion, however, presumes that movant is attacking
the 2005 judgment. As a result, the motion is denied.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause within twenty-one
(21) days of the date of this Order why this action should not be dismissed as timebarred.
IT IS FURTHER ORDERED that if movant fails to comply with this Order,
this action will be dismissed.
IT IS FURTHER ORDERED that the government’s motion to dismiss [ECF
No. 2] is DENIED.
So Ordered this 15th day of April, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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