Gonzales v. USA

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that, no later than April 5, 2016, movant must show cause in writing why his motion to vacate should not be dismissed as untimely. IT IS HEREBY ORDERED that if movant does not comply with this Order, the Court will dismiss this action without further proceedings. Show Cause Response due by 4/5/2016. (Copy of order mailed to Samuel Anguiano Gonzales) Signed by District Judge Carol E. Jackson on 3/8/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAMUEL ANGUIANO GONZALEZ,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16CV299 CEJ

MEMORANDUM AND ORDER
This matter is before the Court on Samuel Gonzales’s motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. Because the motion appears to be timebarred, movant will be required to show cause why it should not be summarily dismissed.
See 28 U.S.C. § 2255 Rule 4.
Movant pled guilty to production of and receipt of child pornography.

On

February 13, 2014, the Court sentenced him to 600 months’ imprisonment. Movant
appealed. The Court of Appeals affirmed, issuing its judgment on October 27, 2014.
Movant filed the instant motion on February 29, 2016.
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.
For a defendant who does not file a petition for a writ of certiorari, the judgment
of conviction becomes final when the time for filing a certiorari petition with the United
States Supreme Court expires. Clay v. United States, 537 U.S. 522, 527 (2003). Under
the Rules of the Supreme Court of the United States, the time to file a petition for writ of
certiorari is ninety days after the date of entry of the judgment appealed from. Supreme
Court Rule 13(1). The time does not run from the date of mandate. Id.; Clay, 537 U.S. at
527, 529. A § 2255 petitioner therefore has one year and ninety days from the judgment
of the appellate court to file a § 2255 motion.
In this case, the statute of limitations expired on January 25, 2016, which is one
year and ninety days after October 27, 2014. As a result, movant must show cause why
his motion should not be summarily dismissed.
Accordingly,

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IT IS HEREBY ORDERED that, no later than April 5, 2016, movant must show
cause in writing why his motion to vacate should not be dismissed as untimely.
IT IS HEREBY ORDERED that if movant does not comply with this Order, the
Court will dismiss this action without further proceedings.
Dated this 8th day of March, 2016.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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