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 107), pursuant to United States v. Simmons , 649 F.3d 237 (4th Cir. 2011), and his motion under 18 U.S.C. § 3583(e)(1) to terminate supervised release (DE 108). The government filed a motion to dismiss (DE 112) and a response to the motion to terminate supervised release, to which petitioner has replied. 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, petitioner's motion to terminate supervised release will be denied, and this matter will be dismissed.
On April 7, 2008, petitioner pleaded guilty pursuant to a written plea agreement to being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count one), and manufacturing counterfeit currency and aiding and abetting, in violation of 18 U.S.C. §§ 471 and 2 (count three). On July 11, 2008, petitioner was sentenced to a term of fifty-three (53) months imprisonment, and a term of three years supervised release, on each count, to be served concurrently. Petitioner did not file a direct appeal, and petitioner was released from custody and began his three-year term of supervised release on July 20, 2011.
On August 2, 2012, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that he is actually innocent of his felon in possession charge in light of Simmons. In addition, petitioner moved to terminate his supervised release, due to good behavior, as applicable to his conviction under 18 U.S.C. § 471, and, in the alternative, applicable to his term of supervised release for his felon in possession conviction. The government does not dispute that petitioner is actually innocent of his felon in possession charge, but it contends that petitioner's motion is untimely and barred by the waiver in his plea agreement, among other grounds, and that the motion to terminate supervised release should be denied.
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 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 the exercise of due diligence.
28 U.S.C. § 2255(f)(1-4).
Petitioner's motion is untimely under each prong of § 2255(f). 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 ...