Memorandum Opinion, § 2255 Motion — United States v. Howard Lee Stith Jr. (Dkt. 67, E.D. Va.)

Summary

A Memorandum Opinion in United States of America v. Howard Lee Stith Jr., Criminal No. 3:23CR110 (RCY), Document 67, filed 09/23/26, in the Eastern District of Virginia, Richmond Division. Stith, a federal inmate proceeding pro se, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence of eighty-four months, imposed on May 14, 2024 after a January 18, 2024 guilty plea; an Amended Restitution Order of June 4, 2024 directed restitution of $2,400,577.14. The Court states that the time to file ran to May 28, 2025 and the motion was filed July 30, 2025, with no explanation of the untimeliness. It denies the § 2255 Motion (ECF No. 59) as barred by the statute of limitations, grants the Motion to Dismiss (ECF No. 66), and denies a certificate of appealability.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Memorandum Opinion, § 2255 Motion — United States v. Howard Lee Stith Jr. (Dkt. 67, E.D. Va.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-23-cr-00110-dkt-67-e-d-va-5b1b23952f/, SHA-256 adfef06a4c6ad18d86f861854f45083787776b34069305460f18cb6eeea086c0.

Full text

Case 3:23-cr-00110-RCY-MRC Document 67 Filed 09/23/26 Page 1 of 5 PageID# 586

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA,

v. Criminal No. 3:23CR110 (RCY)

HOWARD LEE STITH JR.,

Petitioner.

MEMORANDUM OPINION

Howard Lee Stith Jr., a federal inmate proceeding pro se, filed this motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence (“§ 2255 Motion,” ECF No. 59).1 The

Government has filed a Motion to Dismiss the § 2255 Motion. ECF No. 66. Although the Court

provided Stith with the notice required under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),

see ECF No. 60, at 1, Stith has not filed any response. For the reasons explained below, the § 2255

Motion will be DENIED as barred by the statute of limitations.

I. BACKGROUND

On August 16, 2023, a grand jury returned a thirty-count Indictment against Stith, charging

him with (1) twenty-one counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts

One through Twenty-One); (2) one count of filing a false tax return, in violation of 26 U.S.C.

§ 7206(1) (Count Twenty-Two); (3) three counts of evasion of tax assessment, in violation of 26

U.S.C. § 7201 (Counts Twenty-Three through Twenty-Five); (4) three counts of failure to file

income tax return, in violation of 26 U.S.C. § 7203 (Counts Twenty-Six through Twenty-Eight);

and (5) two counts of making a false statement to a financial institution, in violation of 18 U.S.C.

§§ 1014 and 2 (Counts Twenty-Nine and Thirty). ECF No. 3, at 15–30.

1
The Court employs the pagination assigned by the CM/ECF docketing system. The Court corrects the
capitalization, spelling, and punctuation in quotations from Stith’s submissions.
Case 3:23-cr-00110-RCY-MRC Document 67 Filed 09/23/26 Page 2 of 5 PageID# 587

On January 18, 2024, pursuant to a written Plea Agreement with the United States, ECF

No. 38, Stith appeared in Court and pleaded guilty to Counts One, Eleven, and Twenty-Two of the

Indictment. See ECF No. 37. On May 14, 2024, the Court entered Judgment and sentenced Stith

to eighty-four months of incarceration. ECF No. 52, at 2. Specifically, the Court sentenced Stith

to serve eighty-four months as to Count One, eighty-four months as to Count Eleven, and thirty-

six months as to Count Twenty-Two, with the terms to be served concurrently. Id. On June 4,

2024, the Court entered an Amended Restitution Order, directing Stith to pay restitution in the

amount of $2,400,577.14. ECF No. 54, at 1. Stith did not appeal.

On June 30, 2025, the Court received from Stith a letter dated June 22, 2025, in which Stith

inquired as to “the status of [his] 2255 motion,” which he claimed to have “sent . . . to the Court

in August 2024.” ECF No. 56. In response, the Clerk of Court provided Stith a copy of the docket

sheet, which showed no evidence of the Court ever having received such a motion. See ECF No.

56-2. Stith then filed a letter requesting “a nunc pro tunc order to allow [him] to refile [his] 2255

motion.” ECF No. 57, at 1. Observing that Stith had not appended a § 2255 motion to his letter

and that “no case or controversy exists before a § 2255 motion is actually filed,” the Court denied

Stith’s request but directed the Clerk to mail him a standardized form for filing a § 2255 motion.

ECF No. 58, at 1–2.

On July 30, 2025, Stith filed his § 2255 Motion. ECF No. 59, at 7.2 He responded “No”

to a question inquiring whether he had “previously filed any other motions, petitions, or

applications concerning [his] judgment of conviction.” Id. at 2. He left blank the section directing

2
This is the date that Stith indicates that he placed his § 2255 Motion in the prison mailing system. ECF No.
59, at 7. The Court deems the § 2255 Motion filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988).

2
Case 3:23-cr-00110-RCY-MRC Document 67 Filed 09/23/26 Page 3 of 5 PageID# 588

petitioners to explain “why the one-year statute of limitations as contained in 28 U.S.C. § 2255

does not bar your motion.” Id. at 6. He identified two claims for relief:

Claim One “Ineffective Assistance of Counsel

Counsel was ineffective for failing to object and challenge the restitution
amount, after I instructed him to do so.” Id. at 4.

Claim Two “Ineffective Assistance of Counsel

Counsel was ineffective for failing to object and challenge the guideline
range, after I instructed him to do [so].” Id. at 5.

As explained below, Stith’s claims are barred by the relevant statute of limitations and will

therefore be DISMISSED.

II. STATUTE OF LIMITATIONS

Section 101 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) amended

28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ

of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically,

28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise
of due diligence.

3
Case 3:23-cr-00110-RCY-MRC Document 67 Filed 09/23/26 Page 4 of 5 PageID# 589

2. The time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection.

28 U.S.C. § 2244(d).

Here, the Court entered judgment against Stith on Tuesday, May 14, 2024, the date of

sentencing. See ECF No. 52. Because Stith did not appeal, his convictions became final on

Tuesday, May 28, 2024. See United States v. Clayton, No. 3:07cr488, 2010 WL 4735762, at *3

(E.D Va. Nov. 15, 2010) (citing Arnette v. United States, Nos. 4:01CR16, 4:04CV122, 2005 WL

1026711, at *4 (E.D. Va. May 2, 2005)); Fed. R. App. P. 4(b)(1)(A) (requiring defendant to file

an appeal within fourteen (14) days of the entry of judgment).3 Accordingly, Stith had until

Wednesday, May 28, 2025, to file any motion under 28 U.S.C. § 2255. He did not do so until July

30, 2025. As a result, the § 2255 Motion is untimely unless Stith demonstrates a viable basis for

a belated commencement of the limitation period under 28 U.S.C. § 2255(f)(2)–(4) or some

equitable basis for avoiding the limitation period. But he has failed to do so. Indeed, although

Stith initially stated that he had filed a motion under § 2255 in August 2024, he later declared

under penalty of perjury in his § 2255 Motion that he had not filed any previous motion. See ECF

No. 59, at 7. Stith also failed to offer any explanation as to the untimeliness of his § 2255 Motion

in the motion itself and did not respond to the untimeliness arguments raised in the Government’s

Motion to Dismiss. Thus, Stith has failed to offer any reason why his § 2255 Motion should be

deemed timely filed.

3
The Court’s subsequent entry of an Amended Restitution Order does not toll the limitation period. See 18
U.S.C. § 3664(o) (“A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that
. . . such a sentence can subsequently be . . . amended.”); United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015)
(“[A] judgment that includes a sentence but leaves the amount of restitution open is sufficiently final for appellate
purposes.” (citations omitted)). In any event, consistent with the reasoning in this opinion, the § 2255 Motion would
be untimely even if the limitation period began on June 18, 2024, fourteen days after entry of the Amended Restitution
Order was entered.

4
Case 3:23-cr-00110-RCY-MRC Document 67 Filed 09/23/26 Page 5 of 5 PageID# 590

Accordingly, the § 2255 Motion (ECF No. 59) is barred by the statute of limitations and

will be DENIED.

III. CONCLUSION

For the reasons set forth above, the § 2255 Motion (ECF No. 59) will be DENIED. The

Government’s Motion for Extension of Time (ECF No. 65) will be GRANTED and the Motion to

Dismiss (ECF 66) will be deemed timely filed. The Motion to Dismiss (ECF No. 66) will be

GRANTED. The action will be DISMISSED. A certificate of appealability will be DENIED.

An appropriate Final Order will accompany this Memorandum Opinion.

It is so ORDERED.

/s/
Roderick C. Young
Date: September 23, 2026 United States District J d
udge
Richmond, Virginia

File and source

File: 67.pdf
Size: 147,647 bytes
SHA-256: adfef06a4c6ad18d86f861854f45083787776b34069305460f18cb6eeea086c0
Our copy: 67.pdf
Original: No public link identified.