United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion to vacate under 28 U.S.C. § 2255 (DE 50), and the government's motion to dismiss (DE 55). 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.
Petitioner pleaded guilty without a plea agreement to possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count 1); possession of a sawed-off shotgun not registered in the national firearms registration and transfer record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (count 2); and possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count 3). On February 11, 2011, petitioner was sentenced to a term of 188 months on counts 1 and 3, and a term of 120 months on count 2, all such terms to be served concurrently. Petitioner appealed and on December 5, 2011, the court of appeals granted an unopposed motion to remand for sentencing in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
The court entered amended judgment of conviction on February 13, 2012, sentencing petitioner to a term of 120 months on each of counts 1, 2, and 3, to be served concurrently, removing an enhancement previously imposed on the basis of the Armed Career Criminal Act. Petitioner appealed his amended judgment. The court of appeals affirmed in an opinion issued September 6, 2012. On January 14, 2013, the Supreme Court of the United States denied petitioner's petition for certiorari.
On June 16, 2014, petitioner filed the instant § 2255 motion, asserting two claims: (1) that the court improperly imposed a 4-level enhancement in offense level under 2K2.1(b)(6), imposed on the basis of possession of a firearm in connection with another felony offense, in violation of Alleyne v. United States, 113 S.Ct. 2151 (2013); and, (2) that petitioner's criminal history was improperly calculated, in light of Simmons. The government moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that the claims are untimely, not cognizable, and procedurally defaulted. Because the court agrees that the claims are untimely and procedurally defaulted, the court dismisses the petition on those grounds.
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).
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 ...