Johnson v. USA
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Johnson must show cause, no later than twenty-one (21) days from the date of this Order, why his motion to vacate under § 2255 should not be dismissed as untimely. IT IS FURTHER ORDERED that if Johnson fails to comply with this Order, the Court will dismiss this action without further proceedings. Show Cause Response due by 3/21/2016. Signed by District Judge Rodney W. Sippel on 2/29/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KENNETH R. JOHNSON,
UNITED STATES OF AMERICA,
No. 1:16CV38 RWS
MEMORANDUM AND ORDER
Kenneth Johnson moves to vacate his sentence under 28 U.S.C. § 2255.
Upon review, it appears that the motion is barred by the limitations period. As a
result, I will order Johnson to show cause why it should not be summarily
On December 20, 2005, Johnson pled guilty to transportation of child
pornography via the internet, possession of child pornography, and two counts of
sexual exploitation of children. On April 19, 2006, I sentenced him to a total of
sixty years’ imprisonment. Johnson appealed, but his appeal was dismissed for
lack of jurisdiction on July 10, 2006. Johnson filed the instant motion on February
A district court may consider, on its own initiative, whether a habeas action
is barred by the statute of limitations. Day v. McDonough, 547 U.S. 198, 210
(2006). However, before dismissing a habeas action as time-barred, the court must
provide notice to the movant. Id.
Under 28 U.S.C. § 2255, a movant must file his motion within one year from
“the date on which the judgment of conviction becomes final . . .”
For a defendant who does not file a petition for a writ of certiorari, the
judgment of conviction becomes final when the time for filing a certiorari petition
with the United States Supreme Court expires. Clay v. United States, 537 U.S.
522, 527 (2003). Under the Rules of the Supreme Court of the United States, the
time to file a petition for writ of certiorari is ninety days after the date of entry of
the judgment appealed from. S.Ct. R. 13(1). The time does not run from the date
of mandate. Id.; Clay, 537 U.S. at 527, 529. A § 2255 petitioner therefore has one
year and ninety days from the judgment of the appellate court to file a § 2255
In this case, the limitations period expired on April 10, 2007. Consequently,
the motion is time-barred unless Johnson can demonstrate equitable tolling.
Johnson argues that he is entitled to equitable tolling because he is actually
innocent. He claims his attorney was ineffective during plea proceedings because
the photographic evidence produced by the government was not sexually explicit,
and therefore, did not qualify as child pornography under the statutes. Johnson
says he would not have pled guilty but for counsel’s mistake.
To overcome the statute of limitations, a claim of actual innocence must be
based on new evidence, that is, evidence not available during the criminal
proceedings. See, McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013). In this
case, the supposed evidence of Johnson’s actual innocence was available to him
before he pled guilty. As a result, it does not appear that Johnson can overcome
the limitations period.
IT IS HEREBY ORDERED that Johnson must show cause, no later than
twenty-one (21) days from the date of this Order, why his motion to vacate under
§ 2255 should not be dismissed as untimely.
IT IS FURTHER ORDERED that if Johnson fails to comply with this
Order, the Court will dismiss this action without further proceedings.
Dated this 29th day of February, 2016.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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