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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSEPH R. MILLER, §

No.30941-177, §

Defendant- Movant, §

§

v. § No. 3:03-CR-0389-R

§ (No. 3:05-CV-0656-R)

UNITED STATES OF AMERICA, §

Plaintiff- Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the Court in

implementation thereof, the subject cause has previously been referred to the undersigned

United States Magistrate Judge. The Findings, Conclusions, and Recommendation of the

Magistrate Judge, as evidenced by his signature thereto, are as follows:

Findings and Conclusions

Type Case

This is a motion to vacate or set aside sentence filed pursuant to 28 U.S.C. §2255

filed by Joseph R. Miller (“Movant” or “Miller”) who is presently confined at FCI

Seagoville in Seagoville, Texas. Process has not been issued in this case.

Statement of Facts

Movant plead guilty on December 2, 2003 to one count of bank fraud. On March

9, 2004, he was sentenced to a term of imprisonment of twelve months and a day and

restitution in the amount of 139,986.54 dollars. Miller did not appeal his conviction.

On March 23, 2005, Movant filed what he styled as Motion for Reduction of

Sentence Based on Guideline Amendment Effective 1/12/05 Concerning Relevant

Conduct. It was denied on April 11, 2005.

Miller filed the present motion on April 1, 2005.

 

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Findings and Conclusions

The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year

statute of limitations for federal inmates seeking relief under § 2255. See 28 U.S.C.

§2255. The district court may raise the affirmative defense of the statute of limitations

sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).

Section 2255 provides in pertinent part as follows:

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. 

 Movant's judgment of conviction was entered on the docket on March 9, 2004. 

His conviction, therefore, became final on March 23, 2004, the last day on which he

could have appealed to the Fifth Circuit Court of Appeals from the judgment of

conviction. See Fed. R. App. P. 4(b)(1)(A) ("In a criminal case, a defendant's notice of

appeal must be filed in the district court within 10 days after the later of (i) the entry of

either the judgment or the order being appealed; or (ii) the filing of the government's

notice of appeal.") and 26(a)(2). The one-year period began to run on March 24, 2004,

the day after the conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202

(5th Cir.1998), and expired on March 24, 2005. Movant did not file this § 2255 motion

 

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 Movant has filed two non-responsive letters since the date of the Magistrate Judge’s order, filed

by the clerk on April 27, 2005 and May 25, 2005 respectively.

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until April 1, 2005, after the expiration of the one-year period. Therefore, Movant's

§2255 motion is untimely.

On April 21, 2005, the Magistrate Judge issued an order to Movant requiring that

he show cause why his case was not barred by the one year limitations period. See 28

U.S.C. § 2255. As of the date of this recommendation, Miller has failed to comply with

the court’s order.1

Recommendation

For the foregoing reasons it is recommended that the District Court dismiss the

motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 as barred by

the one-year statute of limitations.

A copy of this recommendation shall be mailed to Movant. 

Signed this 24th day of June, 2005

____________________________________

Wm. F. Sanderson, Jr.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten days after being served with

a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79

F.3d 1415 (5th Cir. 1996)(en banc), a party's failure to file written objections to these

proposed findings of fact and conclusions of law within such ten-day period may bar a de

novo determination by the district judge of any finding of fact or conclusion of law and

shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court.

 

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