United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
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.
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.
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. (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).
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
(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
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.
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
however, asserts that his motion is subject to the doctrine
of equitable tolling because his attorney's failure to
perfect his direct appeal ...