Halter v. USA

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that, no later than twenty-one (21) days from the date of this Order, movant shall show cause in writing 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, this action will be dismissed. Show Cause Response due by 8/6/2015. Signed by District Judge Carol E. Jackson on 7/16/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN HALTER,
Movant,

UNITED STATES OF AMERICA,
Respondent,

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No. 4:15CV1050 CEJ

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 February 25, 2005, movant pled guilty to being a felon in possession of a
firearm.

On September 13, 2005, the Court sentenced movant to 180 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. However, before dismissing a
habeas action as time-barred, the court must provide notice to the movant. Day v.
McDonough, 547 U.S. 198, 210 (2006).
Title 28 U.S.C. ' 2255(f) provides, in pertinent part:

A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of-.* * *
(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[.]
Movant contends that he was unconstitutionally classified as being an armed
career criminal in possession of a firearm, in light of Johnson v. United States, ---S.Ct.---,
2015 WL 2473450 (June 26, 2015).

In Johnson, the Court held that imposing an

increased sentence under the ACCA’s residual clause violates due process. Id. at *5, 11.
Movant’s § 2255 motion is only timely if the Supreme Court has made Johnson
retroactively applicable to cases on collateral review.

The Court has not done so.

Nothing in Johnson suggests that it is retroactively available. As a result, it appears that
the motion is untimely.
Movant alternatively requests relief under 28 U.S.C. § 2241.

Section 2241,

however, is not available to him because his custodian is not located in this District. 28
U.S.C. ' 2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004).
Accordingly,
IT IS HEREBY ORDERED that, no later than twenty-one (21) days from the
date of this Order, movant shall show cause in writing why the instant ' 2255 motion
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 16th day of July, 2015.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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