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Barber v. United States

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

November 20, 2014

SHAWN BARBER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on petitioner's motion to vacate under 28 U.S.C. § 2255 (DE 40), and the government's motion to dismiss (DE 45). Petitioner responded to the motion to dismiss. In this posture the issues raised are ripe for ruling. For the following reasons, the court grants the government's motion and dismisses petitioner's motion.

BACKGROUND

Petitioner pleaded guilty pursuant to a written plea agreement to conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 846 (count 1); and possession of a firearm in furtherance of a drug-trafficking crime, under 18 U.S.C. § 924(c) (count 2). On May 13, 2009, petitioner was sentenced to a term of 182 months on count 1 and a term of 60 months on count 7 to be served consecutively, producing a total term of 242 months. Petitioner did not appeal.

On June 12, 2014, petitioner filed the instant § 2255 motion, asserting three claims: (1) that petitioner's criminal history was improperly calculated, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011); (2) that the court improperly imposed sentencing enhancements, including career offender enhancement, on the basis of prior convictions, in violation of Alleyne v. United States, 113 S.Ct. 2151 (2013); and (3) the court miscalculated drug quantity. The government moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that the claims are untimely and barred by the waiver in petitioner's plea agreement. Because the court agrees that the claims are untimely, the court dismisses the petition on that basis.

DISCUSSION

A. Standard of Review

Under § 2255(b), "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." To survive a motion to dismiss, a pleading must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). In evaluating such a motion, "a court accepts all well-pled facts as true and construes these facts in the light most favorable to the [pleader], " but does not consider "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet, Ltd.v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Nor must the court accept "unwarranted inferences, unreasonable conclusions, or arguments." Id. (quotations omitted).

B. Analysis

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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