Henderson v. USA

Filing 2

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that movant shall show cause, in writing within thirty (30) days of the date of this order, why this action should not be dismissed as time-barred. Movant's failure to file a response shall result in the denial of the instant motion to vacate and the dismissal of this action as time-barred. ( Show Cause Response due by 11/13/2015.). Signed by District Judge Carol E. Jackson on 10/14/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TANIA HENDERSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:15-CV-1556-CEJ

MEMORANDUM AND ORDER
Before the court is Tania Henderson’s motion to vacate, set aside, or correct
her sentence pursuant to 28 U.S.C. ' 2255 [doc. 1]. For the following reasons,
the court will instruct movant to show cause why this action should not be
dismissed as time-barred.
On April 29, 2013, movant pled guilty to theft of government funds, in
violation of 18 U.S.C. § 641, and aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1). She was sentenced on July 30, 2013, to 144 months=
imprisonment and three years of supervised release. The United States Court of
Appeals for the Eighth Circuit affirmed the judgment on April 4, 2014. United
States v. Henderson, No. 13-2755 (8th Cir. 2014).

Movant seeks relief from her conviction and sentence on the grounds that
she was not given the Miranda warnings before being questioned by law
enforcement and she was denied effective assistance of counsel.
Discussion
Rule 4(b) of the Rules Governing ' 2255 Cases in 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.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. ' 2255 now provides:
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

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(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
A review of the instant motion indicates that it is time-barred under 28
U.S.C. ' 2255(1) and subject to summary dismissal. The Eighth Circuit affirmed
movant’s conviction on April 4, 2014, but the motion to vacate was not deemed
filed until September 26, 2015, the date it was placed in the prison mailing system.
Thus, even affording movant ninety days following the appellate court’s ruling, her
motion to vacate appears to be untimely by approximately three months.
The Court notes that in the section labeled ATimeliness of Motion: If your
judgment of conviction became final over one year ago, you must explain why the
one-year limitations . . . does not bar your motion,@ movant responded, AI was
waiting for an appeal and my first 2255. My first 2255 was denied because I had
an appeal in process. Once my appeal was denied, I was transferred to another
institution therefore, I am doing it at the present time.” Movant=s response is
insufficient to warrant the tolling of the one-year limitation period. See Kreutzer
v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (equitable tolling proper only when
extraordinary circumstances beyond prisoner=s control make it impossible to file
timely petition).

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Because movant has not advanced an explanation that warrants tolling of the
one-year statute of limitations, the court will order her to show cause within thirty
days of the date of this order as to why this action should not be dismissed as
untimely.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause, in writing
within thirty (30) days of the date of this order, why this action should not be
dismissed as time-barred. Movant=s failure to file a response shall result in the
denial of the instant motion to vacate and the dismissal of this action as
time-barred.
Dated this 14th day of October, 2015.

UNITED STATES DISTRICT JUDGE

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