Dinnius v. USA

Filing 4

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 this action should not be dismissed as time-barred. IT IS FURTHER ORDERED that if movant fails to comply with this Order, this action will be dismissed. Response to Court due by 2/13/2015. Signed by District Judge Jean C. Hamilton on 1/13/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY DINNIUS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:14CV2010 JCH

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. The motion appears to be time-barred, and the Court will order
movant to show cause why the motion should not be summarily dismissed.
On July 8, 2011, movant pled guilty to knowingly conspiring to possess, and possession of,
pseudoephedrine, with intent to manufacture methamphetamine. Movant also pled guilty to
creating a substantial risk of harm to human life while intentionally manufacturing
methamphetamine.

On December 9, 2011, the Court sentenced movant to 130 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 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.
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 9, 2011.
Fed. R. App. Proc. 4(b)(1). As a result, the one-year period of limitations under ' 2255 expired on
or about December 23, 2011. The instant motion was placed in the prison mail system by movant
on December 2, 2014. Therefore, it is time-barred.
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 this action should not be dismissed as
time-barred.

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IT IS FURTHER ORDERED that if movant fails to comply with this Order, this action
will be dismissed.
Dated this 13th day of January, 2014.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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