a district court may consider, on its own initiative, whether a habeas action is time- barred, but must provide notice to the movant before dismissing it as such
How later courts described this case
- a district court may consider, on its own initiative, whether a habeas action is time- barred, but must provide notice to the movant before dismissing it as such
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PARRISH BROWN, )
Movant,
v. No. 4:19-cv-1903-JAR
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter is before the Court upon its own motion. For the reasons explained below,
movant Patrish Brown’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255 will be dismissed as untimely.
On July 1, 2019, movant Parrish Brown filed a Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255, challenging the judgment entered in U.S. v. Brown, No.
4:15-cr-520-JAR-1 (E.D. Mo. Dec. 13, 2016). As explained in this Court’s August 21, 2019
order, movant filed the motion after the expiration of the one-year limitations period applicable
to motions filed pursuant to § 2255. The Court directed movant to show cause why his motion
should not be dismissed as untimely, and cautioned him that his failure to timely comply would
result in the dismissal of his case without prejudice and without further notice. Movant's
response to the Court was due on September 20, 2019. To date, however, he has neither
responded to the Court’s order nor sought additional time to do so.
After careful consideration, the Court concludes that the petition is time-barred, The
Court will therefore summarily dismiss it pursuant to Rule 4(b) of the Rules Governing Section
2255 proceedings in the United States District Courts. See Day v. McDonough, 547 U.S. 198,
210 (2006) (a district court may consider, on its own initiative, whether a habeas action is time-
barred, but must provide notice to the movant before dismissing it as such).
The Court has considered whether to issue a certificate of appealability. To do so, the
Court must find a substantial showing of the denial of a federal constitutional right. See
Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that
issues are debatable among reasonable jurists, a Court could resolve the issues differently, or the
issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing
Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)), Because movant herein has made no such
showing, the Court will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Parrish Brown’s motion to vacate, set aside or correct
his sentence under 28 U.S.C. § 2255 is DISMISSED. A separate order of dismissal wil! be
entered herewith.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 2™ day of October, 2019.
for
UNIPED STATES DISTRICT JUDGE