United States District Court, E.D. Missouri, Southeastern Division
RODNEY L. McFARLAND, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This § 2255 case is before the Court on the government's motion to dismiss, premised on the running of the one-year statute of limitations, doc. #2. Movant McFarland has filed a response, doc. #7, and the government filed its combined response, doc. #11, to the § 2255 petition and McFarland's response to the motion to dismiss.
McFarland plead guilty on January 7, 2013 to the offenses of possession of cocaine base with the intent to distribute and carrying a firearm during and in relation to a drug trafficking crime. On April 10, 2013, this Court sentenced movant to 37 months imprisonment on the first offense and 60 months on the second offense to run consecutively. McFarland did not appeal. However, on May 16, 2014, McFarland filed this action under 28 U.S.C. § 2255 asking that his sentence be vacated on two grounds of ineffective assistance of counsel: 1) that his counsel failed to file a notice of appeal, and 2) that his counsel failed to object to a two-point criminal history enhancement.
Statute of Limitations
Petitioners have a limited time to file a petition for habeas review under § 2255. That limitation period is set out as follows:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall 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 governmental 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(f).
McFarland's sentencing date was April 10, 2013. He had fourteen days to file a notice of appeal. McFarland did not file that notice of appeal, making his sentence "final" for this purpose on April 24, 2013. McFarland had one year to file his § 2255 petition, making April 24, 2014, as his final date to file a § 2255 petition. McFarland actually filed his petition on May 16, 2014, over three weeks beyond the applicable limitation period. The government then filed its motion asking that this Court dismiss McFarland's § 2255 petition for his failure to file it in the one-year time period allowed.
McFarland stated his grounds for excusing his delay in filing his § 2255 petition. In that original petition, under the "Timeliness of Motion" section, McFarland stated:
Movant was sentenced on April 10, 2013. Movant did not seek either direct review of the Appellate Court nor certiorari by the Supreme Court. Therefore Movant's motion is timely based on the time for seeking review from either court. Movant's deadline for this motion is 07/10/2014 which ...