Tessmer v. USA

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Tessmer's ineffective assistance of counsel claim is dismissed as time-barred. Tessmer's claim for relief under Johnson remains pending.. Signed by District Judge Rodney W. Sippel on 5/25/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JONATHAN TESSMER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:16 CV 34 RWS

MEMORANDUM AND ORDER
On December 14, 2015, Petitioner Jonathan Tessmer filed a letter with
this Court indicating he believes he may be entitled to relief under the Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). I
construed that letter as a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. I directed the Clerk of Court to forward
Tessmer’s motion to the Office of the Public Defender for the Eastern District
of Missouri on January 22, 2016 and ordered the Public Defender to notify this
Court whether it will be pursuing Tessmer’s arguments under Johnson. On
May 18, 2016, Tessmer filed another motion on a section 2255 form, on which
he indicates he believes he is entitled to relief on the additional grounds that he
received ineffective assistance of counsel because his counsel did not
challenge “the due process violation substantiated in Johnson v. United

States.” His supporting facts and attached memorandum of law detail his
grounds for believing he is entitled to relief under Johnson.
I will construe Tessmer’s second motion as an amended section 2255
motion that asserts an additional claim of ineffective assistance of counsel. As
Tessmer’s conviction became final for section 2255 purposes more than one
year before he filed his section 2255 motions, his ineffective assistance of
counsel claim is time-barred. See 28 U.S.C. § 2255(f) (one-year limitation
period applies to motions under this section). As a result, I will dismiss that
claim. Tessmer’s claim for relief under Johnson, which was filed within a year
of the Supreme Court’s decision in Johnson, remains pending. See 28 U.S.C. §
2255(f)(3). The case is still referred to the Public Defender’s Office, which is
to notify this Court by June 17, 2016 whether it will be pursuing Tessmer’s
arguments under Johnson.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Tessmer’s ineffective
assistance of counsel claim is dismissed as time-barred. Tessmer’s claim for
relief under Johnson remains pending.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 25th day of May, 2016.
2