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Wallace v. United States

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

April 24, 2019

WALTER WALLACE, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent,

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on movant Walter Wallace, Jr.'s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1). For the reasons discussed below, the motion appears to be time-barred. As such, the Court will order movant to show cause why the motion should not be summarily dismissed.

         Background

         On November 8, 2011, movant pled guilty to robbery of a federally insured institution and possession of a firearm in furtherance of a crime of violence. United States v. Wallace, No. 4:11-cr-186-RWS (E.D. Mo. Nov. 8, 2011). On January 24, 2013, he was sentenced to 57 months on the robbery charge, and 84 months on the possession of a firearm charge, the sentences to be run consecutively. Movant did not file a direct appeal.

         Movant filed his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on January 22, 2019, by placing it in the prison mail system.[1] (Docket No. 1 at 12). He states as his sole ground for relief that his attorney was ineffective for failing to file an appeal after judgment. (Docket No. 1 at 4).

         Discussion

         Motions brought pursuant to 28 U.S.C. § 2255 are subject to a one-year limitations period. Peden v. United States, 914 F.3d 1151, 1152 (8th Cir. 2019). The limitations period runs from the latest of four dates:

(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 exercise of due diligence.

28 U.S.C. § 2255(f). In practice, however, the one-year statute of limitations “usually means that a prisoner must file a motion within one year of the date on which the judgment of conviction becomes final.” Mora-Higuera v. United States, 914 F.3d 1152, 1154 (8th Cir. 2019). An unappealed criminal judgment becomes final when the time for filing a direct appeal expires. See Anjulo-Lopez v. United States, 541 F.3d 814, 816 n.2 (8th Cir. 2008); and Never Misses A Shot v. United States, 413 F.3d 781, 782 (8th Cir. 2005). In a criminal case, a defendant's notice of appeal must be filed in the district court within fourteen days. Fed. R. App. Proc. 4(b)(1).

         Here, movant was sentenced on January 24, 2013. He had fourteen days in which to file an appeal, which he did not do. Thus, his judgment became final on February 7, 2013, fourteen days after his sentencing. Movant did not file his § 2255 motion until January 22, 2019, five years, eleven months, and fifteen days after his judgment became final. As such, his motion was filed beyond the one-year limitations period and appears time-barred.

         Movant, however, asserts that his motion is subject to the doctrine of equitable tolling because his attorney's failure to perfect his direct appeal ...


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