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Finerson v. United States

United States District Court, E.D. Missouri, Eastern Division

June 21, 2017

ANTHONY FINERSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent,

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon review of movant's response to the order to show cause.[1] Having carefully reviewed movant's response, the Court concludes that his arguments are without merit and that the instant action is time-barred under 28 U.S.C. § 2255.

         Procedural Background

         On 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 appeal.

         On May 23, 2017, movant filed the instant motion to vacate, including two claims of ineffective assistance of counsel. Movant 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. 5G1.3 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 sentencing issues relative to “18 U.S.C. Appx. 5G1.3.”[2]

         On June 2, 2017, the Court ordered movant to show cause why his motion to vacate should not be dismissed as time-barred, as it plainly appeared from the face of his motion that it had been filed almost two years too late.[3] Rather than respond to the timeliness analysis, movant requested the ability to “amend” his habeas claims in the response he filed on June 19, 2017.

         Movant seeks to add another ineffective assistance of counsel claim for his defense counsel's alleged failure to inform movant that he needed to be in custody to file his § 2255 petition. Movant also seeks to add a second ineffective assistance of counsel claim asserting that his counsel was deficient for advising movant to waive the mandatory sentencing issues relating to “18 U.S.C. Appx. 5G1.3 thus violating [movant's] 6th Amendment rights.”

         Legal Analysis

         Rule 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.

         Under 28 U.S.C. § 2255(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 ...

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