Wilson v. USA

Filing 4

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that movant's motion to vacate, set aside, or correct illegal sentence pursuant to 28 U.S.C. Section 2255 is DENIED AND DISMISSED AS TIME-BARRED. Rule 4 of the Rules Governing § 2255 Proceeding s. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. 28 U.S.C. Section 2253. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on May 24, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LONNELL WILSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16CV132 CDP

MEMORANDUM AND ORDER
On April 13, 2016, the Court ordered movant to show cause why the Court should not
dismiss movant’s motion to vacate, set aside or correct his sentence as time-barred. Movant has
failed to respond to the Court’s Order to Show Cause. Having carefully reviewed the record
before the Court, the Court concludes that the instant action is time-barred under 28 U.S.C. §
2255 and is subject to dismissal.
On December 20, 2013, movant pled guilty to assault of a federal agent and discharge of a
firearm in furtherance of a crime of violence. On March 19, 2014, the Court sentenced movant to
161 months’ imprisonment. Movant did not appeal.
Under 28 U.S.C. § 2255(f):
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of-(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.
A review of the instant motion indicates that it is time-barred under 28 U.S.C. § 2255(f)(1)
and is subject to dismissal. An unappealed criminal judgment becomes final for purposes of
calculating the time limit for filing a motion under § 2255 when the time for filing a direct appeal
expires. Moshier v. United States, 402 F.3d 116, 118 (2nd Cir. 2005). In this case, the judgment
became final fourteen days after the judgment was entered on March 19, 2014. Fed. R. App. Proc.
4(b)(1). As a result, the one-year period of limitations under § 2255 expired on April 2, 2015. The
instant motion was placed in the prison mail system by movant on January 16, 2016. Therefore, it
is time-barred.
Although movant asserted in his motion to vacate that his motion should be considered
timely based on “newly discovered evidence,” his assertion lacks validity. Movant’s “newly
discovered evidence” claim is based on nothing more than conclusory allegations that he
received ineffective assistance of counsel during his pretrial, plea and sentencing hearings, as
well as his assertion that he lacked a right to a fair trial. Such allegations do not qualify as
“newly discovered evidence” under 28 U.S.C. § 2255(f) or § 2255(h). Furthermore, at movant’s
pretrial hearings, movant acknowledged his legal right to proceed to trial, and he freely waived
that right in order to plead guilty to the charges. Thus, movant was cognizant of his rights and
chose to waive those rights of his own accord.
As movant is not entitled to equitable tolling in this matter, movant’s statute of
limitations began to run on April 2, 2014. Therefore, movant’s statute of limitations expired one
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year later, on April 2, 2015. Because movant waited until January 16, 2016 to place his motion to
vacate in the prison mailing system, this matter is time-barred. The motion to vacate will be
denied and dismissed.
Accordingly,
IT IS HEREBY ORDERED that movant=s motion to vacate, set aside, or correct illegal
sentence pursuant to 28 U.S.C. § 2255 is DENIED AND DISMISSED AS TIME-BARRED.
Rule 4 of the Rules Governing § 2255 Proceedings.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of
Appealability. 28 U.S.C. § 2253.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 24th day of May, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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