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Higgins v. United States

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

November 5, 2019

REGINALD MORGAN HIGGINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on movant Reginald Morgan Higgins's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1). The petition appears to be time-barred. Therefore, for the reasons discussed below, the Court will order movant to show cause why the motion should not be summarily dismissed.

         Background

         In an indictment filed June 27, 2017, movant was charged with three separate counts: (1) possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(a)(2). United States v. Higgins, No. 4:17-cr-00431-RWS-1 (E.D. Mo.). On January 5, 2018, movant pled guilty to count 2, possession of a firearm in furtherance of a drug trafficking crime, and count 3, felon in possession of a firearm. The Court dismissed count 1, possession with intent to distribute heroin and cocaine, on the government's motion. On April 13, 2018, movant was sentenced to 60 months on count 2 and 30 months on count 3. The sentences were run consecutively for a total of 90 months' imprisonment. Movant did not file a direct appeal.

         Movant filed the instant § 2255 motion on October 16, 2019, by placing it in his prison's mailing system.[1] In his motion, he alleges ineffective assistance of counsel.

         Discussion

         Movant is a pro se litigant who is currently in custody at the United States Medical Center for Federal Prisoners in Springfield, Missouri. He brings this motion pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. For the reasons discussed below, the motion appears to be untimely, and movant will be directed to show cause why this action should not be denied and dismissed.

         A. Statute of Limitations

         Motions brought pursuant to 28 U.S.C. § 2255 are subject to a one-year limitations period. Peden v. United States, 914 F.3d 1151, 1152 (8th Cir. 2019). The limitations period runs from the latest of four dates:

(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.

28 U.S.C. § 2255(f). In practice, however, the one-year statute of limitations “usually means that a prisoner must file a motion within one year of the date on which the judgment of conviction becomes final.” Mora-Higuera v. United States, 914 F.3d 1152, 1154 (8th Cir. 2019).

         B. Timeliness Under 28 ...


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