Harris v. United States

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant shall show cause, no later than thirty (30) days from the date of this Memorandum and Order, why his § 2255 motion should not be dismissed as time-barred. IT IS FURTHER ORDERED that if movant fails to comply with this motion, I will dismiss this action without further proceedings. (Show Cause Response due by 7/27/2014.) Signed by District Judge Catherine D. Perry on June 27, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH L. HARRIS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:14CV1098 CDP

MEMORANDUM AND ORDER
This matter is before me on movant’s motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. The motion appears to be barred by the statute of limitations.
A jury found movant guilty of possession of narcotics and felon in possession of a
firearm. United States v. Harris, 4:00CR548 CDP (E.D. Mo.). On June 27, 2002, I sentenced
movant to 188 months’ imprisonment. Id. The Court of Appeals for the Eighth Circuit affirmed
on April 8, 2003. United States v. Harris, No. 02-2746 (8th Cir. 2003).
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.
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.
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. S. Ct. R. 13(1). The time does not run
from the date of mandate. S. Ct. R. 13(3); Clay, 537 U.S. at 527, 529. A federal defendant
therefore has one year and ninety days from the judgment of the appellate court within which to
file a § 2255 motion.
The Court of Appeals issued its judgment on April 8, 2003. Therefore, the limitations
period ended on about July 7, 2004.
Movant argues that the action is not barred by the limitations period because the recent
Supreme Court decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), applies
retroactively and restarted the limitations period. I disagree. The Supreme Court did not
announce that Alleyne applied retroactively to cases on collateral review. Every court that has
discussed the matter has found that it does not. E.g., Simpson v. United States, 721 F.3d 875,
876 (7th Cir. 2013). In Simpson, the court stated that the Supreme Court is unlikely to hold that
Alleyne applies to cases on collateral review:
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed.2d 435 (2000). The Justices have decided that other rules based
on Apprendi do not apply retroactively on collateral review. See Schriro v.

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Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed.2d 442 (2004). This implies
that the Court will not declare Alleyne to be retroactive. See also Curtis v. United
States, 294 F.3d 841 (7th Cir.2002) (Apprendi itself is not retroactive). But the
decision is the Supreme Court’s, not ours, to make. Unless the Justices themselves
decide that Alleyne applies retroactively on collateral review, we cannot authorize
a successive collateral attack based on § 2255(h)(2) or the equivalent rule for state
prisoners, 28 U.S.C. § 2244(b)(2)(A).
Id.
The instant motion was filed a decade after the limitations period expired. As a result, I
will order movant to show cause why his § 2255 motion should not be dismissed as time-barred.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause, no later than thirty (30) days
from the date of this Memorandum and Order, why his § 2255 motion should not be dismissed as
time-barred.
IT IS FURTHER ORDERED that if movant fails to comply with this motion, I will
dismiss this action without further proceedings.
Dated this 27th day of June, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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