United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 or, alternatively, for relief under 28 U.S.C. § 2241 or under the writs of error coram nobis and audita querela, (Doc. No. 1), on the Government's Motion to Dismiss and Response in Opposition, (Doc. No. 6), and on the Government's Motion for Extension of Time to File Response, (Doc. No. 7). Petitioner is represented by Ann L. Hester of the Federal Defenders of Western North Carolina. For the reasons that follow, Petitioner's motion to vacate will be denied, and the § 2255 petition will be dismissed as untimely. Furthermore, Petitioner is not entitled to relief under any of his alternative grounds for relief.
On August 26, 2008, Petitioner was indicted by the Grand Jury for the Western District of North Carolina and charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Criminal Case No. 5:08cr38: Doc. No. 1: Indictment). On October 27, 2008, Petitioner pled guilty without a plea agreement to the § 922(g)(1) offense. ( Id., Doc. No. 9: Acceptance and Entry of Guilty Plea). Before Petitioner's sentencing hearing, the probation office prepared a Presentence Investigation Report ("PSR"), in which the probation officer calculated a base offense level of 24 based on Petitioner's having committed the firearm offense after having sustained at least two felony convictions of either a crime of violence or a controlled substance offense. ( Id., Doc. No. 10 at 4: PSR). Based on a total offense level of 25 and a criminal history category of III, the probation officer calculated an advisory Sentencing Guidelines range of 70-87 months' imprisonment. (Id. at 12). This Court ultimately sentenced Petitioner to a low-end sentence of 70 months in prison, entering judgment on August 11, 2009, and Petitioner did not appeal. ( Id., Doc. No. 15: Judgment).
On August 17, 2012, Petitioner filed the pending motion to vacate his conviction under 28 U.S.C. § 2255 or, alternatively, seeking relief under 28 U.S.C. § 2241 or under the writs of error coram nobis and audita querela, arguing that his sentence was enhanced based on two prior felony convictions, only one of which was punishable by more than one year in prison. Petitioner contends that he is, therefore, entitled to relief under the Fourth Circuit's en banc decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). Petitioner concedes that one of the prior convictions qualifies as a predicate felony even after Simmons. On December 3, 2013, this Court ordered the Government to respond, and the Government filed its motion to dismiss and brief in response on February 10, 2014. (Doc. Nos. 5; 7).
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period 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). Here, Petitioner's judgment became final when his time for filing a notice of appeal expired, which was ten days after this Court entered judgment on August 11, 2009. FED. R. APP. P. 4(b) (amended to fourteen days effective December 1, 2009). Petitioner's motion, filed around three years later on August 17, 2012, is untimely under § 2255(f)(1), and neither of the other subsections applies to render the ...