govinfo:USCOURTS-moed-4_26-cv-00860-0

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
WYLAND KINNEY, )  
 )  
                         Movant, )  
 )  
               v. )           No. 4:26-CV-00860 HEA 
 )  
UNITED STATES OF AMERICA, )  
 )  
                         Respondent. ) 
 
 
OPINION, MEMORANDUM AND ORDER 
 
 This matter is before the Court upon review of movant Wyland Kinney’s motion to vacate, 
set aside or correct sentence brought pursuant to 28 U.S.C. § 2255. Because it appears the motion 
is time-barred, the Court will order movant to show cause why it should not be dismissed. 
Background 
Movant Wyland Kinney was sentenced to a total term of life imprisonment on October 24, 
2023, after a jury found him guilty of distribution of a controlled substance resulting in death, see 
21 U.S.C. § 841(a)(1), (b)(1)(C), distribution of a controlled substance, see id. , and being a felon 
in possession of a firearm, see 18 U.S.C. §§  922(g)(1), 924(a)(2). United States v. Kinney , No. 
4:18-CR-00891 HEA (E.D.Mo. 2023). Movant sought direct review, and on October 30, 2024, the 
United States Court of Appeals for the Eighth Circuit affirmed this Court’s judgment. United States 
v. Kinney, No. 23-3418 (8th Cir. 2024). On November 19, 2024, movant filed a self -represented 
motion in the Court of Appeals for rehearing by the panel. On December 10, 2024, the petition for 
rehearing by the panel was denied by the Court of Appeals as untimely filed. Movant did not file 
a petition for a writ of certiorari in the Supreme Court of the United States.  
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On November 19, 2025, the Court received a letter submitted by movant, postmarked 
November 15, 2025, requesting a 90-day extension of time to file a motion to vacate, set aside or 
correct sentence pursuant to 28 U.S.C. § 2255. See United States v. Kinney , No. 4:18-CR-00891 
HEA (E.D.Mo. 2023); ECF No. 260. The Court granted movant’s motion for extension of time on 
November 24, 2025. See  ECF No. 261. Movant filed his motion to vacate by placing it in the 
mailing system at USP McCreary in Pine Knot, Kentucky on May 30, 2026. ECF No. 1.   
Legal Standard 
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District 
Courts provides that a district court must 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. 
 
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. 
 
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Discussion 
 Turning first to application of § 2255(f)(1), a judgment of conviction generally becomes 
“final” when direct review concludes. See Camacho v. Hobbs, 774 F.3d 931, 933 (8th Cir. 2015). 
When, as here, the movant sought direct review but did not file a petition for writ of certiorari, the 
judgment of conviction becomes final when the time for filing a certiorari petition expires. Clay v. 
United States, 537 U.S. 522, 527 (2003).  
According to the Rules of the Supreme Court of the United States, a certiorari petition must 
be filed “within 90 days after entry of the judgment.” Sup. Ct. R. 13(1). If a petition for rehearing 
is timely filed (or if the appellate court entertains an untimely petition for rehearing), the time to 
file a certiorari petition “runs from the date of the denial of  rehearing or, if rehearing is granted, 
the subsequent entry of judgment.” Sup. Ct. R. 13(3). “The  time to f ile a petition for a writ of 
certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from 
the issuance date of the mandate (or  its equivalent under local practice). ” Sup. Ct. R. 13(3). See 
Clay, 537 U.S. at 524- 25, 527 (rejecting the issuance of the appellate court mandate as the 
triggering date).  
As set forth above, movant’s request to seek rehearing in the Court of Appeals was denied 
as untimely, thus, the judgment of conviction in this case runs from the date the Eighth Circuit 
Court of Appeals issued the opinion on October 30, 2024, and movant had one year  and 90 days 
from that date, as well as an additional 90 days (the extension of time provided by this Court), to 
file his motion to vacate. Movant’s motion was due to the Court no later than April 28, 2026.    
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 However, movant did not file the instant motion until he placed his motion to vacate in the 
mail on  May 30, 2026, making his motion to vacate approximately 32 days late. It therefore 
appears movant’s § 2255 motion is time-barred.1  
The Court will direct movant to show cause, in writing and no later than 30 days from the 
date of this Order, why his motion to vacate should not be dismissed as time-barred.  
Accordingly, 
IT IS HEREBY ORDERED that movant shall show cause, in writing and no later than 
30 days from the date of this Order, why his § 2255 motion should not be dismissed as time-barred. 
IT IS FURTHER ORDERED that if movant fails to timely comply with this order, his 
§ 2255 motion will be denied and dismissed without further notice. 
Dated this 8th day of June, 2026.  
 
      __________________________________________ 
HENRY EDWARD AUTREY 
UNITED STATES DISTRICT JUDGE 
  
 
 
1 See Garcia v. United States, 2019 WL 1084794, *4, No. 3:18-cv-3117-D-BN (N.D. Tex. Feb. 11, 2019) 
(Movant failed to file a timely motion to vacate given the fact that his motion  for en banc panel rehearing 
was untimely filed and could not be used for statute of limitations purposes. The District Court found that 
the 90-day time period for filing a certiorari petition began on the date the judgment was entered in the 
Court of Appeals and did not start on the date of the denial of the untimely motion for rehearing.). 
 
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