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Morris v. United States

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

January 7, 2020

MICHAEL MATTHEW MORRIS, 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 the motion of movant Michael Mathew Morris to vacate, set aside, or correct sentence brought pursuant to 28 U.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.

         Background

         On August 21, 2018, movant pled guilty to possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(i), possession of a firearm, in violation of 18 U.S.C §§ 922(g)(1) and 924(a)(2), possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C). United States v. Morris, No. 1:18-CR-42SNLJ-2 (E.D. Mo.). On November 27, 2018, the Court sentenced movant to a term of 96 months' imprisonment and three years of supervised release. Movant did not appeal.

         On December 18, 2019[1], movant filed a pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Movant requests that the Court vacate his sentence and resentence him without the “922(g)” conviction.”

         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).

         Pursuant to 28 U.S.C. § 2255(f)(1), the one-year limitations period runs from “the date on which the judgment of conviction becomes final.” 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 November 27, 2018. He had fourteen days to file an appeal, which he did not do. Thus, his judgment became final on Tuesday, December 11, 2018, at which point the statute of limitations began to run. From that point, movant had until December 11, 2019 in which to timely file his motion. However, he did not file the instant motion until December 18, 2019 approximately seven days late. Therefore, his motion appears untimely under § 2255(f)(1).

         Movant does not speak to the timeliness of his motion; however, he asserts actual innocence in his motion to vacate, asserting that he is able to mount a challenge to his conviction under 18 U.S.C. § 922(g) pursuant to the recent ...


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