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Wyatt v. United States

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

October 7, 2019

JAMES NICHOLAS WYATT, 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 motion to vacate, set aside, or correct sentence pursuant to28U.S.C. §2255. The motion appears to be time-barred, and the Court will order movant to show cause why the motion should not be summarily dismissed as time-barred.

         Procedural History

          On January 13, 2017, movant pled guilty to possession with intent to distribute methamphetamine, 21 U.S.C.§§ 841(a)(1), (b)(1)(B)(viii), and felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). On April 4, 2017, the Court sentenced movant to a total term of 84 months' imprisonment and four years supervised release.

         On April 4, 2017, movant's counsel, Michael Skrien, filed a document entitled "Certification of Compliance with Local Rule 12.07(A)." The notice stated, "Comes now counsel for the above named Defendant and, pursuant to Local Rule 12.07, notifies the Court as follows: Defense counsel has explained to defendant his right to appeal and defendant has not requested that counsel file a Notice of Appeal." Defendant then marked the box indicating: "I have been fully informed of my right to appeal the final judgment in this case, I do not wish to file a Notice of Appeal, and I have instructed my attorney not to file a Notice of Appeal." Movant did not appeal the judgment.[1] However, on October 30, 2017, movant did send a letter to this Court requesting copies of his plea agreement and judgment. See Docket No. 42.

         Motion to Vacate

          On October 4, 2019, this Court received movant's motion to vacate. The certificate of service attached to the motion states: "I declare...under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system on 09-23-2019." Movant executed the motion to vacate on September 17, 2019.

         In his motion to vacate, movant asserts that his counsel was ineffective based on his failure to file a notice of appeal on his behalf. In his Memorandum of Law attached to his motion to vacate, movant asserts that the existence of his appeal waiver[2], did not relieve defense counsel of the responsibility to file a notice of appeal "upon request." Legal Standard 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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