United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon review of movant's
response to the order to show cause. 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.
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
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.
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. 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.
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
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