United States District Court, W.D. North Carolina, Charlotte Division
GRAHAM C. MULLEN, District Judge.
THIS MATTER is before the Court on an initial review of Petitioner's motion to vacate, set aside or correct sentence which he filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, Petitioner's § 2255 motion will be dismissed as untimely.
On July 6, 2000, Petitioner pled guilty in this district pursuant to a written plea agreement with the Government. The plea agreement provided, in pertinent part, that Petitioner would plead guilty to one count of conspiracy to commit bank robbery and armed bank robbery, in violation of 18 U.S.C. § 371 (Count One); and two counts of using a firearm during and in relation to a crime of violence and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and 2 (Counts Four and Seven). In return for his agreement to plead guilty, the Government agreed to dismiss the remaining twenty-one counts in his indictment. Petitioner was sentenced to a term of five-years of imprisonment on Count One; a seven-year term of imprisonment on Count Four, to run consecutively to the term in Count One; and a twenty-five year term of imprisonment on Count Seven to be served consecutively to the terms imposed in Counts One and Four for a total term of thirty-seven years imprisonment. (3:99-cr-154, Doc. No. 97: Amended Judgment in a Criminal Case). Petitioner filed an appeal to the United States Court of Appeals for the Fourth Circuit.
On appeal Petitioner's counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), contending that there were no meritorious grounds for relief but questioned whether Petitioner's sentence was improper. Petitioner was notified of his right to file a supplemental brief but he failed to do so.
The Court found that Petitioner's guilty plea was knowingly and voluntarily entered after a proper Rule 11 hearing, and the Court rejected Petitioner's challenge to his sentence. Petitioner argued that he was improperly sentenced to consecutive terms for the firearm offenses under § 371 and § 924(c), and that the imposition of these sentences violated his rights under the Double Jeopardy Clause. In rejecting this argument, the Court noted that the crimes set forth in those statutory provisions charge "separate and distinct" crimes. United States v. Brown, 38 App'x 166, 168 (4th Cir. 2002) (unpublished) (internal citations omitted). Petitioner's judgment was affirmed and he did not seek review from the Supreme Court.
This § 2255 motion follows some twelve years after his conviction became final and his contentions will be addressed below.
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 may be 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).
The Antiterrorism and Effective Death Penalty (AEDPA) of 1996, as amended, provides in relevant part that:
(f) A 1-year period of limitation shall apply to a motion under this section. 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 ...