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Thompson v. United States

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

November 5, 2019

ANDRE D. THOMPSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon review of movant's response to the order to show cause and movant's motion for reconsideration. ECF Nos. 7 & 8. Having carefully reviewed these filings, the Court concludes that movant's arguments are without merit and that the instant action is time-barred under 28 U.S.C. § 2255. Movant's motion for reconsideration, construed as additional arguments against untimeliness, will be denied, and this case will be dismissed without prejudice.

         Background

         On April 25, 2017, movant pled guilty to one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). United States v. Thompson, No. 4:16-CR-355-RLW-1 (E.D. Mo. Aug. 10, 2016). On April 26, 2018, the Court sentenced movant to a term of 62 months' imprisonment and two years of supervised release. Movant did not appeal.

         On August 2, 2019, movant filed a pro se document construed as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. ECF No. 1. On April 20, 2019, the Court found the motion defective because it had not been signed by movant and it had not been drafted on a Court form, as required by local and federal rules. ECF No. 4. The Court ordered movant to file a signed, amended motion with the Court, which movant did on September 5, 2019. ECF No. 5. Movant asserts one ground for relief in his amended motion: that his conviction under 18 U.S.C. § 922(g)(1) is unconstitutional.

         Show Cause Order

         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.

         Because movant in this case did not file an appeal, his criminal judgment became final fourteen days after the judgment was entered on April 26, 2018. See Moshier v. U.S., 402 F.3d 116, 118 (2d Cir. 2005); Fed. R. App. Proc. 4(b)(1). As a result, the one-year period of limitations under § 2255 expired on about May 10, 2019. The original motion filed in this case was not dated or signed by movant; however, it was postmarked July 31, 2019. The motion appears time-barred. As a result, on September 11, 2019, the Court ordered movant to show cause as to why this case should not be dismissed as untimely. ECF No. 6.

         Show ...


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