Donaby 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 as to why his motion to vacate should not be dismissed as time-barred. Signed by District Judge John A. Ross on 3/23/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIC DONABY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-386-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Eric Donaby to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. ' 2255.
Movant pleaded guilty to conspiracy to distribute and possess with intent to
distribute heroin in violation of 21 U.S.C. ' 841(B) (1) (c). He was sentenced on
July 16, 2013, to 108 months= imprisonment and 3 years of supervised release.
Movant did not appeal. Movant seeks relief from his conviction and sentence on
the ground of ineffective assistance of counsel in failing to investigate a prior
felony.

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
(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. Movant=s conviction became

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final in 2013, but he did not file this motion to vacate until March 16, 2016, the
date on which movant indicates he placed the motion in the prison mailing system.
Thus, it appears that the instant motion to vacate is untimely.
Movant claims that his motion should be considered timely because he was
“unable to research his case with federal law.”

Movant=s assertion is insufficient

to equitably toll the limitations period in this case.

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).
Because movant has not advanced an explanation that would warrant tolling
of the one-year statute of limitations, the Court will order him to show cause within
thirty days of the date of this Order as to why this matter should not be dismissed
as untimely. Movant is warned that if he does not respond to this Order by the
deadline set forth below, his motion will be dismissed without further notice to
him.
Respondent will not be ordered to respond to the motion to vacate at this
time.
Accordingly,

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IT IS HEREBY ORDERED that movant shall show cause in writing
within thirty (30) days of the date of this Order as to why his motion to vacate
should not be dismissed as time-barred.
Dated this 23rd day of March, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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