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

Download PDF
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 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?