UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

AUSTIN LEE CHIPPS SR., 5:22-CV-05077-RAL Plaintiff, ORDER GRANTING DEFENDANT'S vs. MOTION TO DISMISS UNITED STATES OF AMERICA, Defendant.

On October 14, 2022, Defendant filed a Motion to Dismiss and Brief in 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 Plaintiff's 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 because 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,

(2019), would have had to have been filed by June 24, 2020, to have been timely.

(£)(3); see also Dodd v. United States,

(2005); United States v. Spencer, No. 14CR3221SRNTNL,

, at *4 (D. Minn. Dec. 1, 2021); Bean v. United States, No. 4:20-CV1509-CDP,

, 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 _)4‘* day of January, 2023. BY THE COURT:

CHIEF JUDGE