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Smith v. United States

United States District Court, E.D. North Carolina, Southern Division

August 22, 2014

THOMAS EARL SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

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 42, 44), and the government's motion to dismiss the petition as untimely. (DE 47). 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 the government's motion to dismiss and deny petitioner's motion. Petitioner filed objections to the M&R. In this posture, the matter is ripe for ruling.

BACKGROUND

Petitioner pled guilty pursuant to a written plea agreement to conspiracy to distribute and possess with intent to distribute fifty (50) grams or more of cocaine base (crack) and a quantity of cocaine in violation of 21 U.S.C. §846 (count 1); and possession of firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count 3). On February 25, 2011, the court sentenced petitioner to 90 months imprisonment on count 1 and 45 months imprisonment on count 3, to be served consecutively, producing a total term of 135 months. Petitioner did not appeal. On August 27, 2012, petitioner filed a motion for leave to file a motion under 28 U.S.C. § 2255(f)(3), which the court construed, upon notice given, as a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Petitioner asserts claims that he received ineffective assistance of counsel at the time of his plea, and that he is actually innocent of the § 924 offense. The government moves to dismiss on the basis that the petition is untimely.

DISCUSSION

A. Standard of Review

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis , 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

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 ...

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