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U.S. v. Platero

United States District Court, D. New Mexico
Apr 13, 2010
No. CV 10-0279 LH/LAM, CR 02-1587 LH (D.N.M. Apr. 13, 2010)

Opinion

No. CV 10-0279 LH/LAM, CR 02-1587 LH.

April 13, 2010


ORDER


THIS MATTER is before the Court upon Defendant/Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ( CV Doc. 1; CR Doc. 38) and Application to Proceed In Forma Pauperis, Supporting Documentation and Order ( CV Doc. 2; CR Doc. 39). It appears from the record that Defendant/Movant was found indigent in his criminal proceeding ( CR Doc. 6), and the IFP motion will therefore be denied as moot. Defendant/Movant will be required to show cause why his Section 2255 motion should not be dismissed as untimely. See Rule 4(b) of the Rules Governing Section 2255 Cases in the United States District Courts.

The Court entered judgment on Defendant/Movant's conviction on October 29, 2003 ( CR Doc. 36). Defendant/Movant did not appeal his conviction or sentence. He then filed his § 2255 motion on March 24, 2010, more than six years after entry of judgment. The applicable one-year limitation period in § 2255 has long expired ( see United States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000)), and Defendant/Movant's motion must be dismissed unless there is a basis for tolling ( see United States v. Cordova, No. 99-1306, 202 F.3d 283, 1999 WL 1136759, at *1 (10th Cir. Dec 13, 1999) (unpublished)).

The Court raises the time bar to Defendant/Movant's Section 2255 motion sua sponte and will allow him an opportunity to respond. See Hare v. Ray, No. 00-6143, 232 F.3d 901, 2000 WL 1335428, at *1-2 (10th Cir. Sept. 15, 2000) (unpublished) (noting that timeliness of § 2254 petition was raised sua sponte and allowing petitioner opportunity to be heard by filing objections); Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992) (same for procedural default in § 2255 proceeding). Defendant/Movant will be directed to show cause why his § 2255 motion should not be dismissed as untimely. Failure to respond to this Order or otherwise show cause may result in dismissal of the motion without further notice. IT IS THEREFORE ORDERED that Defendant/Movant's Application to Proceed In Forma Pauperis, Supporting Documentation and Order ( CV Doc. 2; CR Doc. 39) is DENIED as moot; IT IS FURTHER ORDERED that, within thirty (30) days from entry of this order, Defendant/Movant may file a response to this Order showing cause, if any, why his § 2255 motion should not be dismissed as untimely.

IT IS SO ORDERED.


Summaries of

U.S. v. Platero

United States District Court, D. New Mexico
Apr 13, 2010
No. CV 10-0279 LH/LAM, CR 02-1587 LH (D.N.M. Apr. 13, 2010)
Case details for

U.S. v. Platero

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JAMES PLATERO…

Court:United States District Court, D. New Mexico

Date published: Apr 13, 2010

Citations

No. CV 10-0279 LH/LAM, CR 02-1587 LH (D.N.M. Apr. 13, 2010)