Maresca

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DEVIN RYAN MARESCA,

v. Case No. 2:22-cr-108-VMC-DNF

2:26-cv-104-VMC-DNF

UNITED STATES OF AMERICA.

______________________________/

ORDER

On January 20, 2026, Devin Ryan Maresca, proceeding pro

se, filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside or

Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 101) and a

Motion for Authorization of Funds for Handwriting Expert

pursuant to 18 U.S.C. § 3006A(e) (Civ. Doc. # 2). The United

States of America moved to dismiss the 2255 Motion as untimely

on February 23, 2026. (Civ. Doc. # 6). Mr. Maresca responded

in opposition to the Motion to Dismiss on March 2, 2026. (Civ.

Doc. # 8). For the reasons that follow, the Motion to Dismiss

is granted, the 2255 Motion is dismissed as untimely, and the

Motion for Authorization is denied as moot.

I. Background

After a jury trial in August 2023, Mr. Maresca was

convicted of ten counts of mail fraud, in violation of 18

U.S.C. § 1341, and one count of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1). (Crim. Doc. ## 1, 76).

This Court sentenced Mr. Maresca to a term of imprisonment of

36 months and one day total, followed by a 36-month term of

supervised release. (Crim. Doc. ## 87, 88). Judgment was

entered on November 28, 2023. (Crim. Doc. # 88). Mr. Maresca

did not appeal.

Mr. Maresca was released from imprisonment in July 2025

(Civ. Doc. # 6 at 2), but remains “in custody” for purposes

of Section 2255 while he serves his term of supervised

release. See United States v. Brown, 117 F.3d 471, 475 (11th

Cir. 1997) (“[A]s a person serving a term of supervised

release, Brown was ‘in custody’ within the meaning of § 2255

when he filed his petition in the district court.”).

Mr. Maresca mailed his 2255 Motion, asserting a claim of

ineffective assistance of counsel based on counsel’s failure

to hire a handwriting expert, on January 16, 2026. (Civ. Doc.

# 1 at 2; Civ. Doc. # 1-2). The Clerk received and docketed

the Motion on January 20, 2026. (Civ. Doc. # 1; Crim. Doc. #

101). Mr. Maresca has also filed a Motion for Authorization

of Funds for Handwriting Expert pursuant to 18 U.S.C. §

3006A(e), asking the Court to provide him funds to hire a

handwriting expert so that he can establish his actual

innocence and prove his ineffective assistance of counsel

claim. (Civ. Doc. # 2).

Now, the United States moves to dismiss the 2255 Motion

as untimely. (Civ. Doc. # 6). Mr. Maresca has responded. (Civ.

Doc. # 8). The 2255 Motion and the Motion to Dismiss are ripe

for review.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) “established a one-year statute of limitations

applicable to § 2255 motions, which begins to run from, inter

alia, ‘the date on which the judgment of conviction becomes

final.’” Ramirez v. United States, 146 F. App’x 325, 326 (11th

Cir. 2005) (quoting 28 U.S.C. § 2255). “In most cases, a

judgment of conviction becomes final when the time for filing

a direct appeal expires.” Id.

In certain other circumstances, the one-year statute of

limitations runs from (1) “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”; (2) “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 (3) “the date on which the facts supporting the claim or

claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2255(f)(2)-(4).

Judgment was entered in this case on November 28, 2023.

(Crim. Doc. # 88). Mr. Maresca had fourteen days — until

December 12, 2023 — to file a notice of appeal. Fed. R. App.

P. 4(b)(1)(A). But Mr. Maresca did not file a notice of

appeal. Thus, Mr. Maresca’s judgment of conviction became

final on December 12, 2023. “The limitation period started

the next day, and the time to file a Section 2255 motion

expired a year later” — on December 13, 2024. Salley v. United

States, No. 8:19-cr-317-MSS-AEP, 2023 WL 3568618, at *1 (M.D.

Fla. May 18, 2023). But Mr. Maresca did not file the instant

2255 Motion until January 20, 2026 — over a year after the

deadline. (Civ. Doc. # 1; Crim. Doc. # 101). Thus, the 2255

Motion is untimely under Section 2255(f)(1).

Mr. Maresca attempts to avoid this conclusion. First, he

argues that, under 28 U.S.C. § 2255(f)(2), the statute of

limitations period should be calculated based on a later,

unspecified date because of a government-created impediment.

(Civ. Doc. # 8 at 2); see 28 U.S.C. § 2255(f)(2) (stating the

limitation period may run from “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”). He claims the U.S. Marshals

lost his cellphone in December 2023 when Mr. Maresca was

transferred from Charlotte County Jail to Glades County Jail.

(Civ. Doc. # 8 at 2). When Mr. Maresca filed a motion for

return of the cellphone, the United States acknowledged that

it does not possess the cellphone and does not know where the

cellphone is. (Crim. Doc. ## 91, 96, 97). Mr. Maresca asserts

that the cellphone “contained critical text messages between”

himself and his attorney “proving that [he] repeatedly

demanded a handwriting expert before and during the August

2023 trial.” (Civ. Doc. # 8 at 2). According to Mr. Maresca,

“[b]y losing the device containing the primary evidence of

counsel’s deficient performance, the Government created a

physical and evidentiary impediment that has hindered [Mr.

Maresca’s] ability to substantiate his claims.” (Id.).

This argument fails. Section 2255(f)(2) does not apply

here. As an initial matter, Mr. Maresca has not identified

the date on which the supposed impediment created by the

government was “removed.” Thus, the Court cannot calculate on

what date Mr. Maresca believes the statute of limitations

runs. In fact, it appears the supposed impediment was never

removed. Mr. Maresca does not allege that the cellphone was

ever found and returned to him, and the Court denied Mr.

Maresca’s motion for return of the cellphone because the

United States does not possess it. (Crim. Doc. # 97).

Furthermore, the loss of the cellphone in December 2023

was not an impediment to timely filing a 2255 motion. Mr.

Maresca’s sole claim in his 2255 Motion relates to counsel’s

failure to hire a handwriting expert for trial. Mr. Maresca

was aware of this failure before he was sentenced, and other

evidence could be presented to support this claim. In fact,

Mr. Maresca filed a sworn declaration along with his 2255

Motion, averring that he asked counsel to hire a handwriting

expert multiple times but counsel failed to do so. (Civ. Doc.

# 3). He also filed copies of emails between himself and

counsel from November 2023 to support that he had asked for

a handwriting expert. (Civ. Doc. # 3-1). Nothing prevented

Mr. Maresca from timely filing his 2255 Motion with only these

items as supporting evidence. Even assuming text messages

from the cellphone would have strengthened Mr. Maresca’s

ineffective assistance of counsel argument, such cellphone

was not necessary for Mr. Maresca to prepare his 2255 Motion

about the alleged ineffective assistance.

Next, Mr. Maresca argues that he is actually innocent

such that he should be permitted to bypass the statute of

limitations bar. (Civ. Doc. # 8 at 1-2). “Notwithstanding

AEDPA’s statute of limitations, it has been recognized that

an untimely habeas petition can be overcome — thereby opening

the door to review — through a credible showing of actual

innocence.” Ware v. United States, No. 2:20-cv-326-WKW-JTA,

2022 WL 17332583, at *3 (M.D. Ala. Oct. 17, 2022) (citing

McQuiggin v. Perkins, 569 U.S. 383, 393–94 (2013)), report

and recommendation adopted, No. 2:20-cv-326-WKW, 2022 WL

17324585 (M.D. Ala. Nov. 29, 2022). A petitioner asserting

actual innocence must establish that, in light of new

evidence, “it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable

doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual

innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998). The Supreme Court has explained that

a substantial claim that constitutional error has

caused the conviction of an innocent person is

extremely rare. . . . To be credible, such a claim

requires petitioner to support his allegations of

constitutional error with new reliable evidence —

whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical

physical evidence — that was not presented at

trial. Because such evidence is obviously

unavailable in the vast majority of cases, claims

of actual innocence are rarely successful.

Schlup, 513 U.S. at 324 (emphasis added).

Mr. Maresca has failed to make a credible showing of

actual innocence. He has not presented any new evidence to

support his actual innocence claim. The only “new evidence of

innocence” he identifies is not new at all: his brother’s

testimony during trial. (Civ. Doc. # 8 at 1).

Likewise, Mr. Maresca’s pure speculation that some

handwriting expert would conclude that he did not forge his

brother’s signature on checks is not new evidence. See Hammond

v. Patterson, No. 1:12-cv-935-TMH, 2014 WL 2617276, at *3

(M.D. Ala. May 20, 2014) (“Hammond neither references nor

presents any actual ‘new reliable evidence’ to establish his

innocence as a matter of fact. Consequently, he falls short

of the showing necessary to fit within the actual-innocence

exception under Schlup. His claim of actual innocence is based

on the speculative possibility that DNA testing of evidence

might reveal potentially exculpatory evidence.”), report and

recommendation adopted, No. 1:12-cv-935-TMH, 2014 WL 2616212

(M.D. Ala. June 11, 2014); Fox v. Pineiro., No. 1:23-cv-5327-

MLB-JCF, 2024 WL 6982276, at *4 (N.D. Ga. Dec. 11, 2024)

(“[B]ecause results of any latent fingerprint analysis are

not actually in Petitioner’s possession or in the record

before this Court, Petitioner’s assertions about what such

evidence could show are entirely speculative, and speculation

does not satisfy Petitioner’s high burden of proving his

actual innocence.”); Mancill v. Terry, No. 1:06-cv-0280-TCB-

AJB, 2009 WL 10711206, at *8 (N.D. Ga. July 25, 2009)

(“Unidentified evidence, of course, cannot be considered in

determining whether Petitioner meets the actual innocence

standard.”), report and recommendation adopted, No. 1:06-cv-

280-TCB-AJB, 2009 WL 10711208 (N.D. Ga. Aug. 31, 2009).

Mr. Maresca’s pending Motion seeking funds for a

handwriting expert under 18 U.S.C. § 3006A(e) does not alter

this conclusion. (Civ. Doc. # 2). His reliance on Section

3006A of the Criminal Justice Act is misplaced because this

section “applies to the appointment of an expert in the trial

and sentencing of indigent defendants and makes no mention of

§ 2255.” Grantz v. United States, No. 1:19-cr-459-1, 2025 WL

1693822, at *1 (M.D.N.C. June 17, 2025), appeal dismissed,

No. 25-6704, 2025 WL 3772087 (4th Cir. Dec. 31, 2025); see

also 18 U.S.C. § 3006A(c) & (e) (“A person for whom counsel

is appointed shall be represented at every stage of the

proceedings from his initial appearance before the United

States magistrate judge or the court through appeal . . . .

Counsel for a person who is financially unable to obtain

investigative, expert, or other services necessary for

adequate representation may request them in an ex parte

application.”). In short, Section 3006A “does not apply to

collateral challenges.” United States v. Rose, No. CR418-260,

2020 WL 1816472, at *1 n.1 (S.D. Ga. Apr. 9, 2020). Besides

his unavailing citation to Section 3006A, Mr. Maresca

“provides no authority for the provision of an expert in the

context of a § 2255 motion in a non-capital case.” Grantz,

2025 WL 1693822, at *1. “Moreover, even if the Court had

authority to appoint a [handwriting] expert here, it would

not do so” because the Court does not have sufficient reason

to believe that a handwriting expert would provide

exculpatory evidence. Id.

Finally, Mr. Maresca maintains the statute of

limitations should be equitably tolled “because he has

pursued his rights diligently while facing ‘extraordinary

circumstances.’” (Civ. Doc. # 8 at 2). According to Mr.

Maresca, his circumstances are extraordinary because he “was

remanded immediately” after trial and “subsequently

transported to eight [] different institutions in less than

21 months.” (Id.). He contends that “[t]his constant

upheaval, combined with the loss of his legal property by the

U.S. Marshals, constitutes an extraordinary circumstance far

beyond the ‘routine’ hardships of prison life.” (Id.). He

insists that he “has been a relentless litigator of his own

rights” and exercised diligence. (Id. at 2-3).

Mr. Maresca is not entitled to equitable tolling.

“Because equitable tolling is an extraordinary remedy, it is

limited to rare and exceptional circumstances and typically

applied sparingly.” Hunter v. Ferrell, 587 F.3d 1304, 1308

(11th Cir. 2009) (citation and internal quotation marks

omitted). “The petitioner has the burden of proving

entitlement to equitable tolling by showing that

‘extraordinary circumstances that were both beyond his

control and unavoidable even with diligence’ prevented filing

the petition on time.” Jones v. United States, 304 F.3d 1035,

1040 (11th Cir. 2002) (citation omitted). Courts in the

Eleventh Circuit “have not accepted a lack of a legal

education and related confusion or ignorance about the law as

excuses for a failure to file in a timely fashion.” Perez v.

Fla., 519 F. App’x 995, 997 (11th Cir. 2013). “As with any

litigant, pro se litigants ‘are deemed to know of the one-

year statute of limitations.’” Id. (citation omitted).

Mr. Maresca’s frequent transfers between institutions do

not constitute an extraordinary circumstance warranting

equitable tolling. The Eleventh Circuit has held that a

petitioner’s multiple prison transfers, including a transfer

to an out-of-state prison and subsequent transfers that

separated petitioner from his legal papers and a law library,

did not qualify as an exceptional circumstance for equitable

tolling purposes. See Hess v. Sec’y, Dep’t of Corr., No. 16-

14118-E, 2017 WL 6607169, at *3 (11th Cir. Oct. 18, 2017)

(“Because this Court has held that lockdowns and separations

from legal papers, as well as pro se status and ignorance of

the law, cannot constitute such extraordinary circumstances,

it follows that Hess’s transfer to Colorado prison, and his

subsequent transfers between institutions, are not

extraordinary circumstances.”). Mr. Maresca has not shown

that his multiple transfers were anything other than routine

nor sufficiently explained why these transfers prevented him

from timely filing his 2255 Motion. See Richardson v. United

States, No. 3:19-cr-163-BJD-SJH, 2026 WL 352948, at *3 (M.D.

Fla. Feb. 9, 2026) (rejecting equitable tolling argument

where petitioner “fail[ed] to show that his transfers were

‘anything other than routine,’ nor [did] he explain how they

prevented him from timely seeking relief under § 2255”); Neal

v. McNeil, No. 3:09-cv-23/MCR/EMT, 2010 WL 298294, at *8 (N.D.

Fla. Jan. 15, 2010) (“[I]nstitutional transfers, periods of

confinement under more restrictive conditions than general

population, and lack of ready access to legal paperwork and

law libraries are not ‘extraordinary circumstances’; they are

usual incidents of prison life.”).

The loss of Mr. Maresca’s cellphone and the evidence

contained in it, which is akin to separation from legal papers

on which a petitioner would rely in drafting a 2255 motion,

is also not an extraordinary circumstance that prevented Mr.

Maresca from timely filing his 2255 Motion. See Dodd v. United

States, 365 F.3d 1273, 1283 (11th Cir. 2004) (“[L]ockdowns

and periods in which a prisoner is separated from his legal

papers are not ‘extraordinary circumstances’ in which

equitable tolling is appropriate.”), aff’d, 545 U.S. 353

(2005). As discussed previously, the loss of the cellphone

did not prevent Mr. Maresca from filing a 2255 motion earlier.

His claim relates to counsel’s failure to hire a handwriting

expert, a fact of which he was aware well before the statute

of limitations ran. (Civ. Doc. # 3; Civ. Doc. # 3-1). Although

he never got the cellphone back, he was still able to draft

his 2255 Motion and provide other supporting evidence that

was available within the statute of limitations. With due

diligence, Mr. Maresca could have filed his 2255 Motion within

the statute of limitations despite the prison transfers and

cellphone loss.

The United States’s Motion to Dismiss is granted and Mr.

Maresca’s 2255 Motion is dismissed as untimely. Additionally,

Mr. Maresca’s Motion for Authorization of Funds for

Handwriting Expert pursuant to 18 U.S.C. § 3006A(e) (Civ.

Doc. # 2) is denied as moot.

III. Evidentiary Hearing

As the Court readily determined that Mr. Maresca’s

Motion was untimely, no evidentiary hearing is required. See

28 U.S.C. § 2255(b) (stating that an evidentiary hearing is

not necessary if “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief”); see also Hernandez v. United States, 778 F.3d 1230,

1232-33 (11th Cir. 2015) (“To establish that he is entitled

to an evidentiary hearing, Hernandez had to allege facts that

would prove that his counsel performed deficiently and that

he was prejudiced by his counsel’s deficient performance.”).

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Maresca has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c) (2). Nor will the Court

authorize Mr. Maresca to proceed on appeal in forma pauperis

because such an appeal would not be taken in good faith. See

28 U.S.C. § 1915(a) (3). Mr. Maresca shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b) (1) and (2).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) The United States of America’s Motion to Dismiss (Civ.

Doc. # 6) is GRANTED.

(2) Devin Ryan Maresca’s pro se 28 U.S.C. § 2255 Motion to

Vacate, Set Aside or Correct Sentence (Civ. Doc. # 1;

Crim. Doc. # 101) is DISMISSED as untimely.

(3) The Motion for Authorization of Funds for Handwriting

Expert pursuant to 18 U.S.C. § 3006A(e) (Civ. Doc. # 2)

is DENIED as moot.

(4) The Clerk is directed to enter judgment accordingly and

close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this lst

day of April, 2026.

lagi 9n. Munenby Cree

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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