United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on an initial review of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1]. For the reasons that follow, Petitioner's Section 2255 motion will be dismissed.
On September 10, 2002, Petitioner and others were indicted by the Grand Jury in this District on one count of conspiracy to possess with intent to distribute at least 50 grams of a mixture containing cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count One); one count of possession with intent to distribute at least five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three); and another count of possession with intent to distribute at least five grams of cocaine base (Count Four). [Criminal Case No. 1:02-cr-00086-MR, Doc. 11: Indictment].
Petitioner pled guilty to Count One of the Indictment pursuant to a written plea agreement and the Government agreed to dismiss Counts Three and Four. The plea agreement informed Petitioner that he faced not less than ten years nor more than life imprisonment upon conviction of Count One, and Petitioner agreed that he knew or it was reasonably foreseeable to him that at least 50 grams of cocaine base but less than 150 grams were involved in the drug conspiracy. [ Id., Doc. 38: Plea Agreement ¶¶ 2-3]. Petitioner's plea of guilty to Count One was accepted by U.S. Magistrate Judge Max O. Cogburn, Jr. following a Plea and Rule 11 hearing. [ Id., Doc. 41: Acceptance and Entry of Guilty Plea]. On June 11, 2003, the Court entered a written judgment sentencing Petitioner to a term of 264 months' imprisonment. [ Id., Doc. 74: Judgment in a Criminal Case]. Petitioner did not appeal.
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress has provided that a one-year period of limitation shall apply to a motion under Section 2255. The limitation period shall run 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 ...