United States District Court, E.D. Missouri, Eastern Division
NIZZA P. EL, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter is before me upon movant's response to my February
11, 2019 order directing him to show cause why his motion
should not be dismissed as untimely, and to correct the
omission of his signature. Having reviewed and considered
movant's response, I conclude that the motion should be
dismissed because it is time-barred. I also conclude that the
motion should be stricken due to movant's failure to
correct the omission of his signature.
forth in detail in my February 11, 2019 order, movant filed
the instant motion after the expiration of the limitations
period set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Briefly, however,
the relevant dates are as follows. On March 21, 2014, movant
pleaded guilty to federal offenses, and on June 30, 2014, I
sentenced him to serve 60 months' imprisonment, to be
followed by a total of three years of supervised release.
U.S. v. Orlando Preston, No. 4:13-cr-143-CDP-4 (E.D.
Mo. Jun. 30, 2014). Movant appealed, and on March 26, 2015,
the Court of Appeals affirmed the judgment. U.S. v.
Orlando Preston, No. 14-2754 (8th Cir. 2014). There is
no record that movant filed a petition for writ of certiorari
in the United States Supreme Court. Therefore, movant had one
year and ninety days from March 26, 2015, or until June 24,
2016, to file a motion pursuant to § 2255. However,
movant did not file the instant motion until January 28,
2019, nearly four years later. He also failed to sign the
February 11, 2019 order, I directed movant to show cause why
his motion should not be dismissed as untimely, and to
correct the omission of his signature. In response, movant
does not argue that his motion is timely. Instead, he
contends that the “[t]ime bar should not apply because,
I Nobleman Nizza P. El filed a writ of certiorari on August
28, 2015 at (Pekin FCI) located in the state of
Illinois.” (Docket No. 3 at 1). Movant further contends
that “there's a petition to the supreme court
concerning case # 413CR143CDP-4, that was filed on May 20,
2015, sent from (Greenville FCI) located in the state of
Illinois.” Id. Movant indicates that he sent
the documents via certified mail, and he provides tracking
information showing a successful certified mail delivery on
May 22, 2015. Finally, movant contends that “[t]o be
sentenced to code or under code is unconstitutional. I
greatly feel that this should clear up any and all
misunderstanding. Being a Moorish American National A-1
citizen proves the status of jurisdiction.”
Id. Movant neither mentions nor attempts to correct
the omission of his signature from his motion.
AEDPA requires a federal habeas petition to be filed within
one year of the date on which the judgment of conviction
becomes final. 28 U.S.C. §2255(f)(1). Here, movant
asserts that his motion is timely because he sent documents
to the Supreme Court in May and August of 2015. However,
movant does not identify, nor am I aware, of any Supreme
Court matter in which a petition for writ of certiorari he
filed was considered. Movant's averments that he sent
certified mail to the Supreme Court do not permit the
conclusion that he filed a petition for writ of certiorari.
Even if I were to assume movant filed a petition for writ of
certiorari in May or August of 2015, movant does not indicate
the outcome of such proceedings, the date on which they
ended, or any other information from which I could conclude
that his motion is timely. Finally, movant offers no argument
that can be construed as an attempt to claim entitlement to
equitable tolling. Having determined that the motion was
untimely filed, and having considered movant's response,
I conclude that the motion should be dismissed pursuant to
Rule 4(b) of the Rules Governing Section 2255 Proceedings in
the United States District Courts. See Day v.
McDonough, 547 U.S. 198, 210 (2006) (a district court
may consider, on its own initiative, whether a habeas action
is time-barred, but must provide notice to the movant before
dismissing it as such).
note that movant failed to correct the omission of his
signature from his motion after the omission was called to
his attention. I therefore conclude that the motion should be
stricken pursuant to Rule 11 of the Federal Rules of Civil
considered whether to issue a certificate of appealability.
To do so, I must find a substantial showing of the denial of
a federal constitutional right. See Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial
showing is a showing that issues are debatable among
reasonable jurists, a Court could resolve the issues
differently, or the issues deserve further proceedings.
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th
Cir. 1994)). Because movant herein has made no such showing,
I will not issue a certificate of appealability.
IT IS HEREBY ORDERED that movant Nizza P.
El's motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255 is DISMISSED. A
separate order of dismissal will be entered herewith.
IS FURTHER ORDERED that the Clerk of Court shall
STRIKE document 1.
IS FURTHER ORDERED that no certificate of