United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
matter is before the Court on movant's motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. §
2255. The motion appears to be time-barred, and
the Court will order movant to show cause why the motion
should not be summarily dismissed.
February 12, 2014, movant pled guilty to the unauthorized
use, transfer, acquisition, alteration or possession of
Supplemental Nutrition Assistance Program Benefits and
conspiracy to commit an offense against the United States of
America. On May 16, 2014, the Court sentenced movant to 24
months' imprisonment. See United States v.
Finerson, 4:13-CR-483 CDP (E.D.Mo.). Movant did not
asserts that his defense counsel was ineffective for failing
to timely file a notice of appeal to “challenge trial
counsel's failure to inform the District Court of the
Amended U.S.S.G. of 18 U.S.C. Appx. 561.3 that mandated a
term of imprisonment to be served concurrent with anticipated
state sentence when the anticipated state sentence has
relevant conduct with the federal sentence.” Movant
also asserts that his defense counsel was ineffective when he
advised petitioner to waive the “mandatory USSG
sentencing per to 18 U.S.C. Appx.561.3.”
4(b) of the Rules Governing § 2255 Proceedings for the
United States District Courts provides that a district court
may summarily dismiss a § 2255 motion if it plainly
appears that the movant is not entitled to relief.
28 U.S.C. § 2255(f):
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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.
district court may consider, on its own initiative, whether a
habeas action is barred by the statute of limitations.
Day v. McDonough, 547 U.S. 198, 210 (2006). However,
before dismissing a habeas action as time-barred, the court
must provide notice to the movant. Id.
review of the instant motion indicates that it is time-barred
under 28 U.S.C. § 2255(f)(1) and is subject to summary
dismissal. An unappealed criminal judgment becomes final for
purposes of calculating the time limit for filing a motion
under § 2255 when the time for filing a direct appeal
expires. Moshier v. United States, 402 F.3d 116, 118
(2nd Cir. 2005). In this case, the judgment became final
fourteen days after the judgment was entered on May 16, 2014.
Fed. R. App. Proc. 4(b)(1). As a result, the one-year period
of limitations under § 2255 expired on May 30, 2015. The
instant motion was placed in the prison mail system by movant
on May 15, 2017. Therefore, it appears to be time-barred.
IT IS HEREBY ORDERED that movant shall show
cause, in writing and no later than twenty-one (21) days from
the date of this Order, why the instant § ...