United States District Court, Western District of North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Petitioner’s Motion under 28, United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Doc. 1] and the Government’s Response in Opposition to the Motion to Vacate [Doc. 7]. For the reasons that follow, the Court finds that the petition must be dismissed as untimely.
I. PROCEDURAL HISTORY
On December 6, 2006, the grand jury for the Western District of North Carolina charged Petitioner with two counts of possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Counts One and Five); one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Two); and two counts of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(C) (Counts Three and Four). [Crim. Case No. 1:06-cr-00267, Doc. 1: Indictment]. Petitioner pled guilty pursuant to a written plea agreement to one count of possession of a firearm during and in relation to a drug trafficking crime, one count of possession of a firearm by a felon, and the two drug trafficking counts. [Id., Doc. 11: Plea Agreement; Doc. 12: Acceptance & Entry of Guilty Plea]. In exchange, the Government agreed to dismiss the second § 924(c) count. [Id., Doc. 11 at 1]. As part of the plea agreement, Petitioner agreed to waive the right to appeal or collaterally attack his conviction and sentence, with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at 5].
On November 28, 2007, this Court sentenced Petitioner to 75 months in prison for the felon-in-possession and drug trafficking counts, to run concurrently, followed by a mandatory consecutive term of 60 months in prison for the § 924(c) count, for a total of 135 months in prison. [Id., Doc. 14: Judgment]. This Court entered judgment on December 7, 2007, and Petitioner did not appeal. On March 2, 2009, this Court entered an amended judgment, pursuant to 18 U.S.C. § 3582, reducing Petitioner’s sentence on the felon-in-possession and drug trafficking counts to 45 months in prison following retroactive amendments to the drug guidelines. [Id., Doc. 19: Amended Judgment].
Petitioner placed the instant petition in the prison mailing system on August 13, 2012, and it was stamp-filed in this Court on August 17, 2012. [Doc. 1]. In the § 2255 petition, Petitioner contends that he is entitled to relief under the Fourth Circuit’s en banc decision in United v. Simmons, 649 F.3d 237 (4th Cir. 2011).
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. After having considered the record in this matter, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period 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 ...