Pierce v. USA
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than twenty-one (21) days from the date of this Order, why the instant § 2255 motion should not be dismissed as time-barred. If movant wishes to do so, he may also address his assertions regarding his motion for reduction in his sentence. IT IS FURTHER ORDERED that if movant fails to comply with this Order, his § 2255 motion will be dismissed without further proceedings. (Show Cause Response due by 10/22/2015.) Signed by District Judge Audrey G. Fleissig on 10/1/2015. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:15CV1441 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. 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 November 30, 2010, movant pled guilty to conspiracy to possess pseudoephedrine
with the intent to manufacture methamphetamine. On March 1, 2011, the Court sentenced
movant to 92 months’ imprisonment.1 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(f):
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of-1
Movant’s term of imprisonment represented a sentence reduction for time served from July 10,
2010, to the date of sentencing, March 1, 2011, which was approximately eight months, served
under Docket No. 09CR-801 in the Circuit Court of Pulaski County, Missouri, pursuant to
Section 5G1.3(b)(1). His sentence ran concurrently with the balance of the sentence the
defendant was currently serving under the above referenced docket number, and additionally was
to run concurrently with the undischarged term of imprisonment in Docket No. 09TE-CR605,
Circuit Court of Texas County, Missouri, pursuant to the provisions of Section 5G1.2(c).
(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
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(f)(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 March 1,
2011. Fed. R. App. Proc. 4(b)(1). As a result, the one-year period of limitations under § 2255
expired on March 15, 2011. The instant motion was placed in the prison mail system by movant
on September 15, 2015. Therefore, it appears to be time-barred.
Despite the untimeliness of his motion, movant appears to be asserting that the statute of
limitations does not apply to him because he is not “attacking his conviction or sentence.”
Rather, he asserts that he is claiming his rights under the 2014 Drug Amendments to the
Sentencing Guidelines, also known as “drugs minus two amendments,” or Amendment 782.
The Court notes that the proper mechanism for bringing a motion for a reduction in one’s
sentence is through a motion filed in a movant’s criminal case, brought pursuant to 18 U.S.C. §
3582(c). However, in this case, the procedural posture of movant’s request does not matter,
because unfortunately, movant is not eligible for a sentence reduction under the 2014 Drug
Amendments because his guideline range was determined based on his career offender status.
In other words, movant was sentenced under Sentencing Guideline § 4B1.1. As such,
movant does not qualify as a “defendant . . . serving a term of imprisonment, and the guideline
range applicable to that defendant has subsequently been lowered as a result of an amendment to
the Guidelines Manual. . . .” Sentencing Guideline § 1B1.10(a)(1).
Despite the aforementioned, the Court will provide movant an opportunity to respond to
both the untimeliness of his motion to vacate, as well as his argument for a reduction in his
sentence, pursuant to the “drugs minus two” amendment. Movant shall have twenty-one days to
file his response.
IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than
twenty-one (21) days from the date of this Order, why the instant § 2255 motion should not be
dismissed as time-barred.
If movant wishes to do so, he may also address his assertions
regarding his motion for reduction in his sentence.
IT IS FURTHER ORDERED that if movant fails to comply with this Order, his § 2255
motion will be dismissed without further proceedings.
Dated this 1st day of October, 2015.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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