United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG 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,  as well as
non-cognizable. Movant will be asked to show cause why this
matter should not be dismissed.
October 13, 2015, movant pled guilty to two counts of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). See United States
v. Ward, 4:15CR38 AGF (E.D. Mo.). The Court sentenced
petitioner to a prison term of seventy (70) months'
imprisonment (Counts I and II), to be served concurrently,
and two years' of supervised release. Petitioner's
federal sentence was to run consecutively to any sentences
imposed in the Circuit Court for St. Louis under Docket Nos.
1422-CR00112-01 and 1522-CR01777-01. Movant did not appeal
his federal conviction or sentence.
Movant's § 2255 Claims Are Time-Barred
instant motion, movant asserts three grounds for relief.
Movant argues “18 U.S.C. Appx. 4B.1.1 Criminal History
- Sentence for Certain non-violent felony specified offenses
are never counted - 4A.1.2. (c)2.” Movant appears to be
mixing two arguments in his first ground for relief. He first
claims that nothing in § 4A1.1 of the United States
Sentencing Guidelines (“U.S.S.G.”) allows the
Court to assess criminal history points for prior non-violent
offenses. Movant is incorrect.
is no provision in the U.S.S.G. prohibiting the assessment of
criminal history points for prior non-violent offenses. A
review of the Presentencing Report in movant's criminal
action shows that movant's total prior criminal
convictions resulted in a subtotal criminal history score of
five (5). However, because he committed his crime in
federal court while under a criminal justice sentence for
state court Docket No. 1422-CR00112-01, two (2) points were
added to movant's criminal history score, making his
total score seven (7). See U.S.S.G. § 4A1.1(d).
As such, movant's criminal history was a Category IV,
resulting in a Total Offense Level Score of 23 and an
advisory guideline range in the U.S.S.G. of 70-87 months'
asserting that his sentence should not be enhanced based on a
prior non-violent criminal offense, movant also appears to be
arguing that he is entitled to relief under the Supreme Court
case of Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the Supreme Court
held that the residual clause in the Armed Career Criminal
Act (“ACA”), 18 U.S.C. § 924(e), was void
for vagueness. The Supreme Court decided Johnson on
June 26, 2015. Johnson does not apply to movant as
he was not sentenced under the Armed Career Criminal Act.
Moreover, any claims movant wanted to bring in his §
2255 under Johnson would have had to have been
brought no later than October 23, 2016, or within one year of
the date of the time in which he was sentenced.
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 ground one of
movant's motion appears to be time-barred under 28 U.S.C.
§ 2255(f) and is subject to summary dismissal. As a
result, the Court will order movant to show cause why this
action should not be summarily dismissed as time barred.
to doing so, however, the Court will address the remaining
grounds of movant's motion to vacate.
Movant's § 2241 Claims Are Subject to
asserts that he would like his remaining time in custody to
be spent in federal prison, and he asks for his state
sentences in Docket Nos. 1422-CR00112-01 and ...