Wysinger v. USA
ORDER: Petitioner John Wysinger's (Doc. 1 ) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with prejudice. Signed by Judge Stephen P. McGlynn on 2/16/2021. (anb2)
Case 3:19-cv-00714-SPM Document 3 Filed 02/16/21 Page 1 of 4 Page ID #7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 19-CV-00714-SPM
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
McGLYNN, District Judge:
On July 1, 2019, Petitioner filed a pro se motion to vacate, set aside, or correct
sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). Rule 4 of the Rules Governing Section
2255 Proceedings for the United States District Courts provides that upon
preliminary review, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” After carefully
reviewing Petitioner’s motion and the Court’s own records, the Court concludes that
Petitioner is not entitled to relief, and the motion must be dismissed.
Following the passage of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), petitions filed under 28 U.S.C. § 2255 now have a one-year period of
limitation. This period is triggered by the latest of four events:
(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;
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(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
28 U.S.C. § 2255(f).
On December 14, 2010, Petitioner was convicted of conspiracy to distribute and
possess with intent to distribute cocaine and aiding and abetting the possession with
intent to distribute cocaine (Case Number 3:09-cr-30159-SMY, Doc. 255, hereafter
referred to as “Criminal Case”). Petitioner appealed his conviction to the Seventh
Circuit, which vacated his initial conviction and remanded the case back to the
district court, holding that a crucial piece of video evidence should have been
suppressed and that this error was not harmless (Criminal Case, Doc. 314). Petitioner
then pled guilty to both counts, pursuant to the Plea Agreement (Criminal Case, Doc.
346). Petitioner was sentenced to 180 months imprisonment on each count, to run
concurrently, and the judgment was entered on April 30, 2013 (Criminal Case, Doc.
391). For purposes of § 2255, the judgment became final on May 14, 2013 because no
timely direct appeal was filed. See FED. R. APP. P. 4(b)(1)(A).
Petitioner filed the instant motion on July 1, 2019 (Doc. 1). It is clear from the
record that this motion was not filed within one year of Petitioner’s judgment of
conviction becoming final. 1 Petitioner also does not cite any facts to support
It is worth noting that Petitioner also “knowingly and voluntarily waive[d] his right to contest any
aspect of his conviction and sentence that could be contested under Title 18 or Title 28 . . .” (Criminal
Case, Doc. 346).
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refreshing the one-year limitation period under § 2255(f)(2-4), nor can the Court find
any exception to that limitation. Thus, the instant motion is barred by § 2255’s oneyear limitation period, and this Court lacks jurisdiction to entertain the motion.
Because the instant action is time barred pursuant to 28 U.S.C. § 2255, this
motion to vacate, set aside or correct sentence is DENIED, and this action is
DISMISSED with prejudice. The Court DIRECTS the Clerk of Court to close the
case on the Court’s docket.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Cases instructs the district
court to “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” 28 U.S.C. 2253(c)(2) provides that a certificate of
appealability may be issued “only if the applicant has made a substantial showing of
the denial of a constitutional right.”
To meet this standard, the petitioner “must have a constitutional claim (or an
underlying procedural argument on which a constitutional claim depends), and he
must ‘demonstrate that reasonable jurists would find the district court’s assessment
of his constitutional claims debatable or wrong.’” United States v. Fleming, 676 F.3d
621, 625 (7th Cir. 2012), quoting Tennard v. Dretke, 542 U.S. 274, 281 (2004). See also
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has not made a substantial showing of the denial of a constitutional
right. Having thoroughly reviewed the record before the Court, the undersigned
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concludes that reasonable jurists would not find this assessment of Petitioner’s claims
debatable or wrong. Accordingly, this Court DENIES issuance of a certificate of
IT IS SO ORDERED.
DATED: February 16, 2021
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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