Orlando v. United States of America
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 Audrey G. Fleissig on 3/26/2014. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:14CV192 AGF
MEMORANDUM AND ORDER
This matter is before the Court on movant=s motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. ' 2255.
appears to be time-barred, and the Court will order movant to show cause
why the motion should not be summarily dismissed.
On November 14, 2011, movant pled guilty to conspiracy to possess
pseudoephedrine with intent to manufacture methamphetamine. On
February 10, 2012, the Court sentenced movant to a total term of 97 months=
imprisonment. Movant did not 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.
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
(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
(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.
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 (14) days after the judgment was
entered on February 10, 2012. Fed. R. App. Proc. 4(b)(1). As a result, the
one-year period of limitations under ' 2255 expired on or about February 24,
2013. The instant motion was signed by movant on January 27, 2014.
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 26th day of March, 2014.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?