Chipps v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
AUSTIN LEE CHIPPS SR., 5:22-CV-05077-RAL
Plaintiff,
vs.
ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
UNITED STATES OF AMERICA,
Defendant.
On October 14, 2022, Defendant filed a Motion to Dismiss and Briefin Support of Motion
to Dismiss. Docs. 7, 8. The Plaintiff, Austin Lee Chipps Sr., failed to respond. This Court then
allowed Plaintiff until January 18, 2023, to file a response to the motion, warning that if he failed
to do so, the Motion to Dismiss would likely be granted. Doc. 9. The Plaintiff still failed to
respond despite the additional time given to do so.
Defendant's motion and memorandum points out that the Plaintiffs filing was not timely.
Doc. 7; Doc. 8 at 3. Chipps was sentenced on July 6, 2018, and did not appeal. Docs. 61-62, in
5:17-CR-50077-JLV. Chipps filed his § 2255 petition on September 2, 2022. Doc. 1. As such,
his motion is untimely and should be dismissed beeause it was filed more than one year after his
conviction became final and because any argument that could have been based on the Supreme
Court's opinion United States v. Davis. 139 S. Ct. 2319(2019), would have had to have been filed
by June 24, 2020, to have been timely. 28 U.S.C. § 2255(f)(3); see also Dodd v. United States.
545 U.S. 353, 357-58 (2005); United States v. Spencer. No. 14CR3221SRNTNL, 2021 WL
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5644347, at *4(D. Minn. Dec. 1,2021); Bean v. United States. No.4:20-CV1509-CDP,2020 WL
6582637, at *2(E.D. Mo. Nov. 10, 2020). Therefore, it is hereby
ORDERED that Defendant's Motion to Dismiss, Doc. 7, is granted and this matter is
dismissed without prejudice.
DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGE
CfflEF JUDGE
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