United States District Court, E.D. North Carolina, Eastern Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (DE 19), pursuant to United States v. Simmons 649 F.3d 237 (4th Cir. 2011) . The government filed a motion to dismiss (DE 29). 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 government's motion will be granted and this matter will be dismissed.
Petitioner pleaded guilty to felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. On May 19, 2004, petitioner was sentenced to a term of 180 months imprisonment. In calculating petitioner's sentence, the court determined that petitioner was an armed career criminal pursuant to 18 U.S.C. § 924 (e) (1), resulting in a mandatory minimum term of 180 months imprisonment. Petitioner appealed and on February 13, 2006, the court of appeals affirmed. On October 3, 2011, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that his sentence enhancement as an armed career criminal was erroneous in light of Simmons. The government contends in its motion to dismiss that petitioner's motion is untimely. In petitioner's supplemental brief, petitioner argues that his sentence enhancement was improper in light of Descamps v. United States 133 S.Ct. 2276 (2013) . In response to the supplemental brief, the government contends that petitioner's claims under Simmons and Descamps are both without merit.
A. 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 orlaws 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.
28 U.S.C. § 2255(f)(1-4).
Petitioner's motion is untimely under each prong of § 2255(0. It was filed more than one year after the judgment became final. There is no alleged impediment to making the motion created by governmental action. The Supreme Court has not recognized a new rule of substantive law retroactively applicable to cases on collateral review on the basis asserted here. And, no new facts supporting the claims have been discovered. Miller does not change the conclusion that petitioner's motion is untimely. See Miller 735 F.3d at 143 (noting that government waived statute of limitations "which would normally bar Miller's motion as untimely"); United States v. Powell 691 F.3d 554 , 560 (4th Cir. 2012) (dismissing § 2255 Simmons motion as untimely).
Petitioner suggests that equitable tolling may be warranted, however, if his armed career criminal enhancement cement was imposedin error. But, petitioner's arguments as to the application of the enhancement are without merit. First, Simmons does not undermine the armed career criminal enhancement. The court determined that petitioner was an armed career criminal on the basis of four prior breaking or entering convictions and one prior conviction for aiding and abetting discharging a weapon into occupied property. (Presentence report VI 10, 11, 12, 13, 21). Each of these convictions qualifies as a "violent felony" under 18 U.S.C. § 924(e), because they are crimes punishable by imprisonment for a term exceeding one year, and they constitute burglary or otherwise involve conduct that presents a serious risk of physical injury to another. See Taylor v. United States , 495 U.S. 575, 600 ...