United States District Court, E.D. North Carolina, Western 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 162), pursuant to United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The government has filed a motion to dismiss (DE 167) and a supplemental response (DE 170) agreeing to dismissal of one of two counts conviction. In accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge William A. Webb entered memorandum and recommendation (M&R) wherein it is recommended that the court grant in part and deny in part petitioner's motion. (DE 171). Petitioner filed objections to the M&R. 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 court adopts the recommendation of the magistrate judge and grants in part and denies in part petitioner's motion.
Petitioner pleaded guilty pursuant to a written plea agreement to discharging a firearm during a crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (count two); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count three). On August 12, 2008, petitioner was sentenced to a term of imprisonment of 120 months on count two and 84 months on count three, to be served consecutively. In calculating petitioner' sentence the court determined that petitioner was a career offender, subjecting him to a sentencing guidelines range enhancement under USSG §§ 5G1.2(e) and 4B1.1. Petitioner's sentence on count three resulted, in part, from reduction upon motion by the government under USSG § 5K1.1. Petitioner did not appeal. On June 14, 2012, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that his conviction on count three should be vacated for lack of a valid predicate felony offense, and arguing that his career offender sentence enhancement impacting the guidelines range of imprisonment on count two was erroneous in light of Simmons. The government concedes that count three should be vacated in light of Simmons, but it contends that the claim for reduction of sentence as to count two is untimely and barred by the waiver in his plea agreement, among other grounds.
A. Count Three - Actual Innocence
Where the government concedes that petitioner is actually innocent of his felon in possession of a firearm conviction (count three), and where the government waives previously asserted defenses, this count of conviction must be vacated. See Miller , 735 F.3d at 143. Accordingly, the court will amend its judgment entered August 12, 2008, as previously amended on September 4, 2013, to dismiss the conviction and sentence only as to count three, with all other terms of the judgment and amended judgment remaining.
B. Count Two - 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 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 ...