Farrar v. USA

Filing 2

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. IT IS FURTHER ORDERE D that if movant fails to comply with this Order, his § 2255 motion will be dismissed without further proceedings. Signed by District Judge E. Richard Webber on June 28, 2018. (MCB)(Copy sent to: Adam John Robert Farrar, 42391-044, FORREST CITY LOW, FEDERAL CORRECTIONAL INSTITUTION, P.O. BOX 9000, FORREST CITY, AR 72336 this date.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ADAM JOHN ROBERT FARRAR,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:18-CV-1027 ERW

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to dismiss indictment, acquit
defendant, and vacate conviction, which the Court construes as a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255.1 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 April 11, 2016, movant pled guilty to two counts of production of child pornography.
On August 3, 2016, 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.
Under 28 U.S.C. § 2255(f):

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See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (pleading labeled as a Rule 60(b)
motion that is in substance a habeas petition “should be treated accordingly”). “Call it a motion
for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita
querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error,
or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that
controls.” Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). In this instance, the relief
petitioner seeks is available only through a § 2255 motion. See 28 U.S.C. § 2255(a).

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.
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 August 3,
2016. Fed. R. App. Proc. 4(b)(1). As a result, the one-year period of limitations under § 2255
expired on August 17, 2017. The instant motion was placed in the prison mail system by movant
on June 21, 2018. Therefore, it appears to be time-barred.

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Accordingly,
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.
IT IS FURTHER ORDERED that if movant fails to comply with this Order, his § 2255
motion will be dismissed without further proceedings.
Dated this 28th day of June, 2018.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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