United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's response to
the order to show cause.Having carefully reviewed
petitioner'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(f).
December 9, 2015, movant pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(a)(1). On April 15, 2016, the
Court sentenced movant to a total term of 57 months'
imprisonment, to be served concurrently with the sentence
imposed in the Circuit Court, St. Louis, Missouri, under
Docket No. 1222-CR02526. Movant did not appeal his conviction or
motion to vacate, movant asserts that he is entitled to jail
time credit against his federal sentence, from the time he
was arrested by state officers on March 9, 2015 until he was
sentenced by this Court as a felon in possession on April 15,
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), 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. Because movant
failed to appeal his judgment, his conviction became final
fourteen days after it was entered on April 15, 2016. See
Moshier v. United States, 402 F.3d 116, 118 (2nd Cir.
2005); Fed. R. App. Proc. 4(b)(1). As a result, the one-year
period of limitations under § 2255 expired on about
April 29, 2017. The instant motion was signed by movant on
May 31, 2018, or over a year later.
response to the Court's Order to Show Cause, movant
asserts that “he was not actually delivered to the
Bureau of Prisons until July 3, 2017 and prior to that time
he did not have access to the federal law library wherein he
would be able to research his issues.” Movant asserts
that before that time he requested access to “federal
law materials” from his prior custodial officials but
his requests were denied. Movant fails to tell the Court
where he was incarcerated prior to being delivered to the
Bureau of Prisons. Nonetheless, it appears that movant is
seeking the benefit of equitable tolling with regard to his
statute of limitations.
a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling
is Aan exceedingly narrow window of relief.@ Jihad v.
Hvass, 267 F.3d 803, 805 (8th Cir. 2001). “Pro se
status, lack of legal knowledge or legal resources, confusion
about or miscalculations of the limitations period, or the
failure to recognize the legal ramifications of actions taken
in prior post-conviction proceedings are inadequate to
warrant equitable tolling.” Shoemate v.
Norris, 390 F.3d 595, 598 (8th Cir. 2004) (quotation
marks omitted); Kreutzer v. Bowersox, 231 F.3d 460,
463 (8th Cir. 2000) (holding that “even in the case of
an unrepresented prisoner alleging a lack of legal knowledge
or legal resources, equitable tolling has not been
movant has failed to articulate exactly how he was diligent
in pursuing his rights in attempting to file his motion to
vacate in this Court. He has not articulated exactly what his
custody situation was like during the time it took him to
file his 2255, what types of legal resources he had access
to, or how he was allegedly kept from pursuing his legal
remedies at the Court. Moreover, movant has not indicated
why, if he was in federal custody as of July 2017, it took
him until May of 2018 to file his motion to vacate. These
facts weigh against movant's burden of establishing that
he has been faithfully pursuing his rights in order to gain
the benefit of equitable tolling. See Holland v.
Florida, 560 U.S. 631, 649 (2010). Given the
aforementioned, the Court finds that equitable tolling shall
not issue and the statute of limitations bars movant's
motion to vacate.
IT IS HEREBY ORDERED that movant's
motion to vacate, set aside and correct sentence is
DENIED AND DISMISSED AS TIME-BARRED
IS FURTHER ORDERED that no certificate of