United States District Court, Middle District of North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE
On January 13, 2012, this Court (per now-Chief United States District Judge William L. Osteen, Jr.) entered judgment against Petitioner imposing, inter alia, a term of imprisonment, as a result of his guilty plea to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2). (Docket Entry 16; see also Docket Entries dated June 7 and Nov. 15, 2011 (documenting plea and sentencing hearings.) Petitioner did not appeal. (Docket Entry 20, ¶ 8.) On June 28, 2013, the Court docketed a filing signed by Petitioner on June 25, 2013. (Docket Entry 17.) The Court treated said filing as a procedurally-defective motion under 28 U.S.C. § 2255 and promptly sent him the proper form for such a motion. (See Docket Entries 18, 19.) Using that form, on July 24, 2013, Petitioner signed and submitted to prison officials for mailing a pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“Section 2255 Motion”). (Docket Entry 20.) The United States filed a response asking for dismissal, inter alia, based on untimeliness (Docket Entry 24) and Petitioner replied (Docket Entry 28). The Court should dismiss Petitioner’s Section 2255 Motion as untimely.
Petitioner’s Section 2255 Motion asserts that “[t]he Federal Government had no jurisdiction in [his] case.” (Docket Entry 20, ¶ 12 (Ground One) (a); see also id. (cross-referencing Docket Entry 17 at 1-28).) Specifically, Petitioner contends National Fed’n of Indep. Bus. v. Sebelius,
__ U.S. __, 132 S.Ct. 2566 (2012) (“NFIB”), “clarified the scope of the Commerce Clause and the Necessary and Proper Clause, [and that] the specific facts of [his] [c]ase were outside this scope.” (Docket Entry 17 at 3.)
“A 1-year period of limitation shall apply to a motion under  [S]ection .” 28 U.S.C. § 2255(f). Further:
[t]he 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 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 the exercise of due diligence.
Under Paragraph (1) of Subsection 2255(f), Petitioner’s one-year period for filing his Section 2255 Motion commenced on or about January 27, 2012, “upon the expiration of the fourteen-day period for filing a direct appeal” after entry of Judgment on January 13, 2012. United States v. Diallo, 581 F. App’x 226, 227 (4th Cir. 2014) (citing Clay v. United States, 537 U.S. 522, 525 (2003), and Fed. R. App. P. 4(b)(1)(A)(i), (b)(6)); see also United States v. Plascencia, 537 F.3d 385, 387 (5th Cir. 2008) (“[The petitioner’s] conviction became final when the time expired to file a timely notice of appeal on direct review . . . .”); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (same); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (same); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (same); Peoples v. United States, Civ. No. L–10–212, Crim. No. L–04–0423, 2010 WL 1375143, at *1 (D. Md. Mar. 31, 2010) (unpublished) (same), appeal dismissed, 512 F. App’x 376 (4th Cir. 2013); Teal v. United States, Civ. No. 4:12–2391–TLW, Crim. No. 4:09–950, 2013 WL 4776723, at *3 (D.S.C. Sept. 4, 2013) (unpublished) (same); Ervin v. United States, Nos. 1:11CV233, 1:08CR128-7, 2011 WL 5075651, at *3 (W.D. N.C. Oct. 25, 2011) (unpublished) (same). That one-year period expired on or about January 27, 2013, approximately five months before Petitioner filed the procedurally-defective version of his Section 2255 Motion.
Petitioner does not argue that the delayed accrual provisions of Paragraphs (2), (3), or (4) of Subsection 2255(f) apply to his Section 2255 Motion. (See Docket Entry 20, ¶ 18.) Instead, under the heading “Timeliness of Motion, ” he:
1) relies on McQuiggin v. Perkins, ___U.S.___, 133 S.Ct. 1924 (2013), which (as he notes) “‘hold[s] that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations’” ...