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Stewart v. United States

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

December 9, 2019

REUBEN STEWART, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

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

         Background

         On July 14, 2016, movant pled guilty to three counts: felon in possession of a firearm; possession of heroin; and possession of cocaine base. United States v. Stewart, No. 4:16-cr-125-CDP-1 (E.D. Mo.). On December 15, 2016, he was sentenced to a total term of 180 months' imprisonment. Thereafter, movant filed a direct appeal. The United States Court of Appeals for the Eighth Circuit affirmed the Court's judgment on February 21, 2018. United States v. Stewart, 711 Fed.Appx. 810, 812 (8th Cir. 2018). Movant subsequently filed a petition for writ of certiorari in the United States Supreme Court. The petition was denied on October 29, 2018. Stewart v. United States, 139 S.Ct. 415 (2018). Movant filed the instant motion on November 27, 2019, by placing it in his prison's mailing system.[1] (Docket No. 1 at 12).

         In his motion, movant states two grounds for relief. First, he asserts that his counsel was ineffective for advising him to enter a guilty plea. (Docket No. 1 at 4). Second, he states that he is actually innocent of Count I, being a felon in possession of a firearm, after the decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). (Docket No. 1 at 5).

         Discussion

         Movant is a pro se litigant currently incarcerated at the Oxford Federal Correctional Institution in Oxford, Wisconsin. He brings this motion pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the motion appears to be untimely, and movant will be directed to show cause why it should not be denied and dismissed.

         A. Timeliness

         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). When a movant has filed a petition for writ of certiorari, the denial of such petition by the United States Supreme Court fixes the point of finality for his or her conviction. See United States v. McIntosh, 332 F.3d 550, 550 (8th Cir. 2003) (explaining that movant's “conviction became final upon completion of direct review when the Supreme Court denied certiorari…and he had one year from that date to file his section 2255 motion”); and Sweet v. Delo, ...


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