DORSEY v. UNITED STATES OF AMERICA

Filing 2

MEMORANDUM/ORDER TO SHOW CAUSE within thirty (30) days of the date ofthis Order why her § 2255 motion should not be dismissed on timeliness grounds. Signed by Judge Kevin McNulty on 4/27/16. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANDREA DORSEY,
Petitioner,

Civ. No. 16-2294 (KM)

V.

UNITED STATES OF AMERICA,

1vIEMORANDUM AND ORDER

Respondent.
currently incarcerated at the Federal
The petitioner, Andrea Dorsey, is a federal prisoner
Medical Center

—

se with a motion to
Carswell in Fort Worth, Texas. She is proceeding pro

28 U.S.C.
vacate, set aside or correct her sentence pursuant to

§ 2255. In accordance with Rule

gs, see 28 U.S.C.
4(b) of the Rules Governing Section 2255 Proceedin
Court must screen the

§ 2255 Rule 4(b), this

prior to ordering an
§ 2255 motion. For the following reasons,

this case, Ms. Dorsey must show cause why her

answer in

§ 2255 motion should not be dismissed on

timeliness grounds.
Dorsey on March 24, 2014 after she
This Court entered a criminal judgment against Ms.
Dorsey was sentenced to a total term of
pleaded guilty to three counts of bank robbery. Ms.
not file a direct appeal.’
imprisonment of eighty-seven months. Ms. Dorsey did
e states in pertinent part that, “A 1Section 2255(f) of Title 28 of the United States Cod
r this section.” 28 U.S.C.
year period of limitation shall apply to a motion unde

§ 2255(f). This

one year period runs from the latest of:
motion to modify restitution judgment.
‘On June 10, 2014, this Court received Ms. Dorsey’s
denied on August 13, 2014. (See Crim.
(See Crim. No. 13-0509, Dkt. No. 61) That motion was
r 15, 2015, this Court received Ms.
No. 13-0509, Dkt. No. 64) Subsequently, on Decembe
of Criminal Procedure 36 to Correct
Dorsey’s “Motion to Vacate Pursuant to Federal Rule
68) That motion remains pending before
Restitution Amount.” (See Crim. No. 13-0509, Dkt. No.
this Court.

mes final;
(1) the date on which the judgment of conviction beco
motion created
(2) the date on which the impediment to making a
laws of
by governmental action in violation of the Constitution or
prevented from
the United States is removed, if the movant was
making a motion by such governmental action;
gnized by
(3) the date on which the right asserted was initially reco
ed by the
the Supreme Court, if that right has been newly recogniz
on
Supreme Court and made retroactively applicable to cases
collateral review; or
s
(4) the date on which the facts supporting the claim or claim
exercise of due
presented could have been discovered through the
diligence.
28 U.S.C. 2255(f). Based on the allegations of the

§ 2255 motion, it appears that the first of

these is the only applicable option in this case.
ment became final for purposes
Because Ms. Dorsey did not file a direct appeal, her judg
inal judgment was entered. See
of § 2255(f) on April 7, 2014, i.e., fourteen days after the crim
577 (3d Cir. 1999) (where
FED. R. App. P. 4(b)(1); Kapral v. United States, 166 F. 3d 565,
nce becomes final and the statute of
defendant does not pursue direct appeal, conviction and sente
filing such an appeal expired). Thus,
limitations begins to run on the date on which the time for
on April 7, 2015. Ms. Dorsey did not
the Section 2255 statute of limitations expired a year later,
file this

§ 2255 motion until April 19, 2016, however.
In cursory fashion, Ms. Dorsey asserts that her

§ 2255 motion is timely because equitable

ented from asserting her rights and
tolling should be applied. She states that she “was prev
right(s) in the claim of the monetary
counsel did not exercise due diligence in preserving her
For equitable tolling to apply,
amount that the Movant has disputed.” (Dkt. No. I at p. 13)
burden of establishing two elements:
“[g]enerally, a litigant seeking equitable tolling bears the
that some extraordinary circumstance
(1) that he has been pursuing his rights diligently; and (2)
(2005) (citation omitted). “The
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418

2

um, extreme,
diligence required for equitable tolling purposes is reasonable diligence, not maxim

n omitted).
or exceptional diligence.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citatio
she was
For equitable tolling to apply, Ms. Dorsey needs to explain with specifics how
diligently. Her
prevented from asserting her rights and that she has been pursuing her rights
cursory statements on equitable tolling as stated in her

§ 2255 motion are insufficient. Therefore,

this Court will order Ms. Dorsey to show cause why her

§ 2255 motion should not be dismissed

with specific
as untimely. In any response that Ms. Dorsey may elect to file, she should explain
rights and the ways
details what extraordinary circumstances stood in her way from pursuing her
she has been pursuing her rights diligently.
Accordingly, IT IS thiscQ day of April, 2016,
of the date of
ORDERED that petitioner is ordered to show cause within thirty (30) days
this Order why her

it is
§ 2255 motion should not be dismissed on timeliness grounds; and

further
mail.
ORDERED that the Clerk shall serve this Order on petitioner by regular U.S.

KEVIN MCNULTY
United States District Judge

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