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Newman v. United States

United States District Court, E.D. Missouri, Eastern Division

April 19, 2018

LARRY NEWMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER FOR MOVANT TO SHOW CAUSE

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Order This matter is before the Court on movant Larry Newman's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the motion appears to be time-barred, the Court will order movant to show cause why it should not be dismissed as such.

         Background

         On June 29, 2011, movant pleaded guilty to Interference with Interstate Commerce by Threats or Violence in violation of 18 U.S.C. § 1951(a); Carrying a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c); and Kidnapping in violation of 18 U.S.C. § 1201(a)(1). See U.S. v. Larry Newman, Case No. 4:11-cr-11-SNLJ-2 (E.D. Mo. Nov. 2, 2011). On November 2, 2011, the Court sentenced movant to serve a total of 294 months' imprisonment, followed by five years of supervised release.[1] Movant did not appeal his convictions or sentences.

         More than six years later, on March 21, 2018, [2] movant filed the instant motion to vacate, brought pursuant to 28 U.S.C. § 2255. Therein, movant asserts that he is entitled to resentencing based upon the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017).

         Legal Standard

         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):
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 ...


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