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Wertenger v. United States

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

April 30, 2018

BILLY JOE WERTENBERGER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on movant's response to the Order to show cause why this matter should not be dismissed as time-barred.[1]

         Motion to Vacate

         On April 21, 2015, movant pled guilty to possession of child pornography. As part of his guilty plea, movant waived all rights to appeal his conviction or sentence, relating to non-jurisdictional, non-sentencing issues. On July 28, 2015, the Court sentenced movant to a total term of 117 months= imprisonment. Movant did not appeal. See United States v. Wertenberger, No. 1:14CR111 SNLJ (E.D.Mo.).

         On July 28, 2015, movant signed a “Notice of Compliance with Local Rule 12.07(A)” indicating that he had been fulling informed of his right to appeal the final judgment in the case and he did not wish to file a notice of appeal. He also indicated that he had “instructed [his] attorney not to file a Notice of Appeal.” See Docket No. 38.

         Movant filed the instant motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255, on December 18, 2017.

         Discussion

         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:

         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 ...

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