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Plummer v. United States

United States District Court, E.D. North Carolina, Western Division

February 6, 2014



LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on petitioner's motion to reduce sentence (DE 49), pursuant to United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The court held this matter in abeyance pending decision in Miller v. United States , 735 F.3d 141 (4th Cir. 2013), and then directed supplemental briefing, which has been received. In this posture, the matter is ripe for ruling. For the reasons stated below, the motion is subject to recharacterization as an untimely petition under 28 U.S.C. § 2255.


Petitioner pleaded guilty to possession with intent to distribute more than five (5) grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (count one), and possession of a firearm and ammunition in furtherance of a drug trafficking crime (count two). On June 21, 2007, petitioner was sentenced to a term of 168 months imprisonment, comprising 108 months on count one and 60 months on count two, running consecutively. Petitioner appealed and the appellate court affirmed the judgment in part and dismissed the appeal in part, on the basis of a waiver in petitioner's plea agreement. Petitioner's sentence on count one subsequently was reduced to 60 months imprisonment. Meanwhile, on August 15, 2012, petitioner filed the instant motion seeking to reduce his sentence based upon Simmons and additional errors in calculation of his guidelines range. The government contends that petitioner's motion should be construed as arising under 28 U.S.C. § 2255, and that it should be dismissed as untimely, among other grounds.


A. § 2255 Recharacterization

Given the nature of the relief sought and the basis for the relief, the document filed by movant properly should be considered as seeking relief under 28 U.S.C. § 2255, pertaining to motions to vacate, set aside or correct a sentence of conviction.

Pursuant to Castro v. United States , 540 U.S. 375 (2003), the court hereby provides movant with notice of the § 2255 restrictions on second or successive motions, the one year period of limitations, and the four dates in § 2255 to be used in determining the starting date for the limitations period. See 28 U.S.C. § 2255. The court DIRECTS movant to file a response to this order within twenty-one (21) days from the date of this order. The court advises movant that if, within the time set by the court, movant agrees to have his document considered as a § 2255 motion, the court shall consider the motion as one under § 2255 and shall consider it filed as of the date the original motion was filed. If, however, movant fails to respond to this order, the court will not treat his filing as a § 2255 motion but will treat it in the form presented.

Where the motion filed does not substantially follow the form appended to the Rules Governing § 2255 Proceedings and is therefore not in compliance with Rule 2(c) of the Rules Governing § 2255 Proceedings and Local Civil Rule 81.2 of this court, the Clerk is DIRECTED to send a copy of the appropriate form to petitioner. If movant requests that the court consider his document a § 2255 motion, movant must complete the § 2255 form in its entirety, sign it under penalty of perjury (or a person authorized by petitioner, such as an attorney, may sign it) and file the original with the Clerk of this court. Petitioner is DIRECTED to return the form, in accordance with these instructions, within fourteen (21) days from the filing of this order. Failure to do so may result in the dismissal of this action or the striking of the motion. Send the original of the corrected § 2255 form to:

With respect to whether recharacterization is warranted under the circumstances here, based upon the relief sought, the court forecasts that if construed as a § 2255 motion, the court would be required under applicable law to dismiss the petition as untimely, for the reasons stated in subsection B., below. In addition, the court lacks authority to grant relief on the motion as filed, and absent any response to this order the motion thus will be dismissed on that basis.

B. Statute of Limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 claims are subject to a one-year statute of limitations, which runs 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 ...

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