Opinion
Criminal No. 97-303(2) (JRT/RLE)
September 3, 2003
Michael L. Cheever, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff
Clemmie Genero Cason, Federal Correctional Institution, Milan, IL, pro se
ORDER
Defendant Clemmie Genero Cason ("Cason") is currently serving a sentence after being convicted of conspiracy to distribute and to possess with intent to distribute cocaine base. This matter is now before the Court on Cason's motion to proceed in forma pauperis ("IFP") and for production of documents.
Cason has previously filed a motion to correct or vacate his sentence pursuant to 28 U.S.C. § 2255, but he withdrew the motion before it was fully briefed. Cason now seeks IFP designation and production of documents so that he can file another § 2255 motion collaterally challenging his conviction and sentence. The Court finds that Cason's motion must be denied because the time period for filing a collateral challenge has passed.
Section 2255 allows a one-year time limit for filing a motion. The Eighth Circuit has held that this time limit operates as a statute of limitations. See Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999). The limitations period begins to 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 government 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.28 U.S.C. § 2255. In this case, the statute of limitations began to run when Cason's judgment became final. This happened on November 17, 1999, when his petition for a writ of certiorari was denied by the United States Supreme Court. Cason has not yet filed a § 2255 motion, but it is clear that any such motion would be well beyond the one-year limitations period.
For these reasons, the Court finds that Cason's IFP petition is frivolous and therefore is not brought in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962) (holding that an appeal will be considered to be in good faith so long as it is not frivolous). Accordingly, even if Cason is indigent, the Court may not grant his motion. See 28 U.S.C. § 1915(a).
Based on these findings and all of the files, records, and proceedings therein, IT IS HEREBY ORDERED that defendant's application for production of documents and to proceed in forma pauperis on appeal [Docket No. 99] is DENIED.