McAbee v. United State of America

Filing 7

ORDER adopting in full 6 Report and Recommendation. McAbee's Motion shall be construed as a motion under 28 U.S.C. §2255. A Certificate of Appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 10/19/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TERRANCE PAUL MCABEE,

4:17-CV-04090-KES

Petitioner,
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING CASE

vs.
UNITED STATE OF AMERICA,
Respondent.

Petitioner, Terrance Paul McAbee, filed a “Notice of Constitutional
Challenge and Motion to Intervene with an Injunction.” Docket 1. The court
referred the motion to Magistrate Judge Veronica Duffy, who ordered McAbee
to clarify whether he wished to challenge his conviction with a habeas petition
under 28 U.S.C.

2255 or whether he intended to challenge the conditions of

his confinement and seek money damages under 42 U.S.C.

1983. Docket 3.

Magistrate Judge Duffy’s order notified McAbee that failure to comply with the
court’s order might result in dismissal of his case. Id.
On September 18, 2017, Magistrate Judge Duffy submitted a report and
recommended that McAbee’s petition be dismissed. Docket 6. The time for
objections has passed. No objections to the report and recommendation have
been filed. The court has considered the case de novo and adopts the report
and recommendation in full. And the court construes McAbee’s pleadings as a
§ 2255 motion.
Motions under § 2255 are subject to a one-year statute of limitation that

runs from the latest of four specified dates. See 28 U.S.C. § 2255(f). Only one
date is relevant here, which is “the date on which the judgment of conviction
becomes final.” Id. A criminal judgment of conviction becomes final 14 days
after the judgment is entered if no notice of appeal is filed. See Fed. R. App.
P. 4(b)(1)(A)(i). McAbee’s amended judgment became final on February 2, 2016.
More than one year has passed since the date his judgment of conviction became
final. And McAbee has not alleged that he was prevented from filing a motion,

that a new right has been recognized, or that there was evidence that could
not have been discovered until recently to establish his innocence by clear
and convincing evidence. Thus, McAbee’s motion is time barred. Accordingly,
it is
ORDERED that the magistrate judge s report and recommendation
(Docket 6) is adopted in full.
IT IS FURTHER ORDERED that McAbee’s motion shall be construed as
a motion under 28 U.S.C. § 2255;
IT IS FURTHER ORDERED that based upon the reasons set forth
herein and under Fed. R. App. P. 22(b), the court finds that petitioner has not
made a substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). Therefore, a certificate of appealability is denied.
DATED this 19th day of October, 2017.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE