BAILEY v. USA
| CORY BAILEY |
| USA |
| 1:2021cv01824 |
| June 17, 2021 |
| US District Court for the Southern District of Indiana |
| Mario Garcia |
| James R Sweeney |
| Prisoner: Vacate Sentence |
| 28 U.S.C. ยง 2255 |
| None |
Docket Report
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This docket was last retrieved on August 4, 2021. A more recent docket listing may be available from PACER.
| Document Text |
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| Filing 6 Address updated for Petitioner CORY BAILEY from MCCREARY - USP to ALLENWOOD - USP based on BOP website. Docket #2 , #3 AND #4 resent to Petitioner CORY BAILEY at ALLENWOOD - USP. (TMC) |
| Filing 4 CLOSED JUDGMENT. FINAL JUDGMENT - Having this day directed the entry of final judgment, the Court now enters FINAL JUDGMENT in favor of the respondent and against the petitioner. Cory Bailey's motion for relief pursuant to 28 U.S.C. 2255 is DENIED, and the action is dismissed with prejudice. Signed by Judge James R. Sweeney II on 8/3/2021.(JDC) |
Filing 3
Order Denying Motion for Relief Pursuant to 28 U.S.C. 2255 and Denying a Certificate of Appealability - For the reasons explained in this Order, the motion of Cory Bailey for relief pursuant to 28 U.S.C. 2255 must be denied and this action dismissed. In addition, the Court finds that a certificate of appealability should not issue. Under these circumstances, Mr. Bailey's 2255 motion must be dismissed as untimely. Judgment shall now issue, and the clerk shall docket a copy of this Order in No. 1:17-cr-00162-JRS-MJD-6. The motion to vacate, dkt. 745 , shall also be terminated in the underlying criminal action. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11 (a) of the Rules Governing 2255 proceedings, and 28 U.S.C. 2253(c), the Court finds that Mr. Bailey has failed to show that reasonable jurists would find it "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. (Copy to Petitioner via U.S. mail) Signed by Judge James R. Sweeney II on 8/3/2021.(JDC)
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| Filing 5 Mail Returned as undeliverable, return to sender, insufficient address, unable to forward #2 Order sent to CORY BAILEY. (JDC) |
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Filing 2
Order Directing Further Proceedings - Petitioner Cory Bailey's motion for relief pursuant to 28 U.S.C. 2255 appears to have been filed beyond the time permitted by that statute. Specifically, the Anti-Terrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations period for 2255 motions. 28 U.S.C. 2255(f). For purposes of 2255(f)(1), that period runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. 2255(f)(1). A judgment of conviction becomes final when the conviction is affirmed on direct review or when the time for perfecting an appeal expires. Clay v. United States, 537 U.S. 522, 527 (2003). Here, Mr. Bailey's judgment of conviction was entered on the clerk's docket on May 23, 2019. See United States v. Bailey, 1:17-cr-00162-JRS- MJD-6, dkt. 576. Mr. Bailey did not appeal. His conviction therefore became final on the last day he could have filed a notice of appeal, June 6, 2019. See Fed. R. App. P. 4(b)(1)(A). The last day he could have filed a timely 2255 motion was one year later, June 6, 2020. Mr. Bailey's motion, signed May 2, 2021, is nearly 11 months late. The Court may consider, sua sponte, the timeliness of a habeas petition but must afford the parties notice and an opportunity to be heard before acting on their own initiative to dismiss a petition as untimely. See Day v. McDonough, 547 U.S. 198 (2006). As explained, it appears that Mr. Bailey's 2255 motion was filed almost a year after the statute of limitations expired. He shall have through July 21, 2021, in which to show cause why that motion should not be summarily dismissed as untimely. (Copy to Petitioner via U.S. mail) Signed by Judge James R. Sweeney II on 6/21/2021.(JDC)
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| Filing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), filed by CORY BAILEY. (Attachments: #1 Exhibit, #2 Envelope)(REO) |
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