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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JOHN EDWARD MILLER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Case No. C05-5817RJB 

 CR90-1081JET

ORDER DISMISSING CASE

This matter comes before the court on a document captioned “Movant’s Pro Se Reply to

Government’s Response to § 2255 Motion.” Dkt. 9. The court has considered the relevant documents

and the file herein.

PROCEDURAL HISTORY

On December 19, 2005, petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside or

correct his sentence. C05-5817RJB, Dkt. 1. In his request for relief, petitioner also requested that the court

appoint counsel. Id. 

The motion was noted for consideration on the court’s March 20, 2006 calendar. On March 20,

2006, the court issued an order, dismissing the motion as barred by the limitations period of 28 U.S.C. §

2255, and denying petitioner’s request for appointment of counsel. Dkt. 8. On March 20, 2006, after that

order was entered, the court received petitioner’s reply to the government’s response. Dkt. 9. In the

interests of fairness, the court has considered petitioner’s reply.

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In his reply, petitioner argues that this motion is timely because (1) the time limit to challenge to his

sentence under United States v. Booker, 125 S.Ct. 738 (2005) did not begin to run until Booker was

decided on January 12, 2005; and (2) he filed this Section 2255 motion on December 19, 2005, within the

one year specified in 28 U.S.C. § 2255(3). Petitioner also argues that the court was without jurisdiction to

convict and sentence him because the government did not prove that the financial institutions at issue in his

bank robbery convictions were federally insured, and that this qualifies as newly discovered evidence under

28 U.S.C. § 2255(4). 

The court has carefully considered petitioner’s arguments. The Booker issue he raises in his reply

was fully addressed in the court’s March 20, 2006 order. Further, his claim that the government did not

prove that the financial institutions were federally insured does not qualify as newly discovered evidence

under 28 U.S.C. § 2255(4). Petitioner’s motion is time barred under 28 U.S.C. § 2255. The court should

affirm the March 20, 2006 order dismissing the case and denying appointment of counsel. 

Therefore, it is hereby

ORDERED that the court’s March 20, 2006 order (Dkt. 8) is AFFIRMED. Petitioner’s Motion

under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt.

1) is DISMISSED. Petitioner’s request for appointment of counsel (Dkt. 1) is DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any

party appearing pro se at said party’s last known address. 

DATED this 22nd day of March, 2006.

ARobert J. Bryan

United States District Judge 

____________________________

ROBERT J. BRYAN

United States District Judge 

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ORDER

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