Finerson v. USA

Filing 4

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than twenty-one (21) days from the date of this Order, why the instant § 2255 motion should not be dismissed as time-barred. IT IS FURTHER ORDERED that if movant fails to comply with this Order, his § 2255 motion will be dismissed without further proceedings. Signed by District Judge Catherine D. Perry on 6/2/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY FINERSON,
Movant,

UNITED STATES OF AMERICA,
Respondent,

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No. 4:17-CV-1571 CDP

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255.1 The motion appears to be time-barred, and the Court
will order movant to show cause why the motion should not be summarily dismissed.
On February 12, 2014, movant pled guilty to the unauthorized use, transfer, acquisition,
alteration or possession of Supplemental Nutrition Assistance Program Benefits and conspiracy
to commit an offense against the United States of America. On May 16, 2014, the Court
sentenced movant to 24 months’ imprisonment. See United States v. Finerson, 4:13-CR-483
CDP (E.D.Mo.). Movant did not appeal.
Movant asserts that his defense counsel was ineffective for failing to timely file a notice
of appeal to “challenge trial counsel’s failure to inform the District Court of the Amended
U.S.S.G. of 18 U.S.C. Appx. 561.3 that mandated a term of imprisonment to be served
1

Movant filed his motion to vacate on a form for filing actions under 28 U.S.C. § 2241. Despite
the captioning in this case, movant is challenging the constitutionality of his conviction and
sentence, and the motion is more appropriately brought pursuant to 28 U.S.C. § 2255. The
United States Court of Appeals for the Eighth Circuit has held that a writ of habeas corpus may
issue under § 2241 only if it appears that remedy by § 2255 motion is inadequate or ineffective.
See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000). Movant bears the burden of
showing why the § 2255 relief is inadequate or ineffective if he chooses to pursue his arguments
under § 2241. Id.

concurrent with anticipated state sentence when the anticipated state sentence has relevant
conduct with the federal sentence.” Movant also asserts that his defense counsel was ineffective
when he advised petitioner to waive the “mandatory USSG sentencing per to 18 U.S.C. Appx.
561.3.”2
Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District
Courts provides that a district court may summarily dismiss a § 2255 motion if it plainly appears
that the movant is not entitled to relief.
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.

2

This Court has already addressed movant’s request to modify his sentence in his criminal case.
See United States v. Finerson, 4:13-CR-483 CDP (E.D.Mo.), Docket No. 125. On July 18, 2016,
the Court declined to modify movant’s sentence, due to movant’s serious criminal history. In his
motion for reduction of sentence, filed on May 16, 2016, movant did not make any assertions
regarding his defense counsel or his belief that his counsel was ineffective. Movant also failed to
mention his belief that his counsel was ineffective for failing to file a notice of appeal.

2

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.
A review of the instant motion indicates that it is time-barred under 28 U.S.C.
§ 2255(f)(1) and is subject to summary 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 May 16,
2014. Fed. R. App. Proc. 4(b)(1). As a result, the one-year period of limitations under § 2255
expired on May 30, 2015. The instant motion was placed in the prison mail system by movant
on May 15, 2017. Therefore, it appears to be time-barred.
Accordingly,
IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than
twenty-one (21) days from the date of this Order, why the instant § 2255 motion should not be
dismissed as time-barred.
IT IS FURTHER ORDERED that if movant fails to comply with this Order, his § 2255
motion will be dismissed without further proceedings.
Dated this 2nd day of June, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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