Dalton v. USA, No. 4:2015cv00275 - Document 3 (D. Idaho 2015)

Court Description: MEMORANDUM DECISION & ORDER ( Movant's Motion pursuant to 28 U.S.C. § 2255 will be dismissed unless he shows cause, within 30 days of the date this Order is entered, why his Motion should not be dismissed as untimely.) Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

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Dalton v. USA Doc. 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO UNITED STATES OF AMERICA, Plaintiff-Respondent Case No. 4:15-cv-00275-BLW 4:13-cr-00187-BLW MEMORANDUM DECISION AND ORDER v. DANIEL JOSEPH DALTON, Defendant-Movant. The Court has before it Daniel Joseph Dalton=s (AMovant@) Motion Pursuant to 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Dkt. 1). Motions filed pursuant to 28 U.S.C. ' 2255 must be filed within one year of Athe date on which the judgment of conviction becomes final.@ 28 U.S.C. ' 2255(f)(1). In a case such as the present one, where there was no direct appeal, a judgment of conviction becomes final 14 days after the district court enters judgment. See United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). Judgment was entered against Movant on May 22, 2014. Therefore, his conviction became final on June 5, 2014, and the deadline for filing a ' 2255 motion became June 5, 2015. Movant, however, did not file his ' 2255 Motion until July 20, 2015, approximately six weeks after the deadline had passed. MEMORANDUM DECISION AND ORDER - 1 Dockets.Justia.com Movant is hereby notified that his Motion under 28 U.S.C. ' 2255 will be subject to dismissal unless he shows cause, within thirty days of the date this Order is entered, why his Motion should not be dismissed as untimely. In particular, Movant is advised that his Motion will be dismissed unless he presents to the Court evidence that he has diligently pursued his rights and extraordinary circumstances preventing timely filing existed. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Only if he presents such evidence may the Court toll the one-year limitation period. Id. Movant should be aware, however, that “the threshold necessary to trigger equitable tolling … is very high.” Id. (citing Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006)). ORDER NOW THEREFORE IT IS HEREBY ORDERED that Movant’s Motion pursuant to 28 U.S.C. ' 2255 will be dismissed unless he shows cause, within 30 days of the date this Order is entered, why his Motion should not be dismissed as untimely. DATED: August 27, 2015 _________________________ B. Lynn Winmill Chief Judge United States District Court MEMORANDUM DECISION AND ORDER - 2

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