# Maresca

> District Court, M.D. Florida · April 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11364649

## Case

- **Full name:** Devin Ryan Maresca v. United States of America
- **Court:** District Court, M.D. Florida
- **Decided:** April 1, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11364649. Public record. Not legal advice.