Williams v. United States of America

Filing 4

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that movant's motion to vacate, set aside, or correct illegalsentence pursuant to 28 U.S.C. 2255 is DENIED. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 6/8/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIA WILLIAMS,
Movant,

UNITED STATES OF AMERICA,
Respondent,

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No. 4:15CV00721 ERW

MEMORANDUM AND ORDER
This matter is before the Court on movant’s response to the Court’s order to show cause
why movant’s motion to vacate, brought pursuant to 28 U.S.C. ' 2255, should not be dismissed
as time-barred. Having carefully reviewed movant=s response, the Court concludes that his
arguments are without merit and that the instant action is time-barred under 28 U.S.C. ' 2255.
As set forth in greater detail in the Court’s May 7, 2015 Memorandum and Order, 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).
Movant was sentenced on November 6, 2008, to 120 months’ imprisonment and five
years of supervised release after pleading guilty to conspiracy to distribute and possess with the
intent to distribute heroin.1 Movant did not file a direct appeal of his sentence.
In this case, the one-year period of limitations under ' 2255 expired on November 20,
2008. Fed. R. App. Proc. 4(b)(1). The instant motion was placed in the prison mail system by
movant on April 30, 2015. Therefore, it is time-barred.
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The Court ordered movant’s sentence to run concurrently with sentences imposed in movant’s
state court cases #0622CR03258 and #07CR767.

Movant asserts in his response brief that his concerns are “not really with the sentencing
guidelines. . .but with the clarity of the ruling on the topic of the 2D1.1(b)(1) firearm
enhancement.” Movant states that it is the “firearm enhancement ruling” that is “preventing
[him] from receiving 12 months credit for participating and completing the Residential Drug
Abuse Program (RDAP).”
This Court has addressed movant’s assertions regarding the two level enhancement at
sentencing for possession of a firearm in a prior ruling, on April 25, 2014, noting that movant
possessed a weapon in connection with the criminal offense for which he was convicted and
sentenced and therefore the two level enhancement was appropriate. Although the Court has
some sympathy for movant, the Court sees no legal reason to change its prior ruling on the
matter.
Accordingly,
IT IS HEREBY ORDERED that movant=s motion to vacate, set aside, or correct illegal
sentence pursuant to 28 U.S.C. ' 2255 is DENIED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate Order of Dismissal shall accompany this Memorandum and Order.
So Ordered this 8th day of June, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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