United States District Court, E.D. Missouri, Eastern Division
NIZZA P. EL, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER FOR MOVANT TO SHOW
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
matter is before me upon review of a “Memorandum in
Support of Application for Habeas Corpus, ” filed by
movant Nizza P. El, also known as Orlando Preston. For the
reasons explained below, I will construe the Memorandum as a
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255, and direct movant to show cause why I
should not dismiss it as time-barred. I will also direct
movant to correct the omission of his signature.
Memorandum, movant cites 4:13CR143 CDP-4, a criminal case in
which he (identified as Orlando Preston) was a defendant.
See U.S. v. Orlando Preston, No. 4:13-cr-143-CDP-4
(E.D. Mo. Jun. 30, 2014). There, on March 21, 2014, movant
pleaded guilty to conspiracy, mail fraud, and operating a
chop shop. On June 30, 2014, I sentenced him to serve 60
months' imprisonment, to be followed by a total of three
years of supervised release. Movant appealed, and on March
26, 2015, the Court of Appeals affirmed the judgment. Movant
did not file a petition for writ of certiorari.
instant Memorandum and the attachment thereto, movant argues
that the imposition of supervised release is invalid. As
relief, he asks that “the court of the EASTERN DISTRICT
OF MISSOURI terminate the code order of supervised release as
to NOBLEMAN Nizza P. El a Moorish National with all rights
reserved under the 1, 5, 6, 9, 10th Amendment
right, as well as the American declaration of rights of
INDIGENOUS PEOPLES.” Id. at 13 (emphasis in
original). While movant does not specifically cite 28 U.S.C.
§ 2255, he clearly states he seeks habeas relief, he
cites his federal criminal case, and he challenges the
validity of the portion of his sentence imposing supervised
release. As this is an argument challenging the validity of
the sentence as imposed, it must be brought in a motion
pursuant to 28 U.S.C. § 2255. See, e.g., U.S. v.
Hutchings, 835 F.2d 185, 186 (8th Cir. 1987). I
therefore construe movant's Memorandum as a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
4(b) of the Rules Governing § 2255 Proceedings for the
United States District Courts provides that a district court
must summarily dismiss a § 2255 motion if it plainly
appears that the movant is not entitled to relief.
28 U.S.C. § 2255(f):
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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.
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 ...