United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on the Government's Motion to Dismiss [DE-146] Stephon Bullock's pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-135, DE-139] For the reasons more fully stated below, the Government's Motion to Dismiss is ALLOWED.
I. Factual and Procedural Background
On April 16, 2009, Bullock was charged in three counts of a four-count indictment. See Indictment [DE-1]. In Count One, Bullock was charged with conspiracy to distribute more than 5 kilograms of cocaine, more than 50 grams of cocaine base (crack), more than 100 grams of heroin, and a quantity of marijuana, in violation of 21 U.S.C. § 846. Count Three charged Bullock with distribution of more than 5 grams of cocaine base (crack) and a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(l). In Count Four, Bullock was charged with possession with intent to distribute more than 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(l).
At his arraignment held on September 8, 2009, pursuant to a plea agreement [DE-52], Bullock pled guilty to Count One. It was agreed that Counts Three and Four would be dismissed at sentencing. [DE-52] at 5.
On March 2, 2010, Bullock was sentenced to 221 months' imprisonment on Count One. See Judgment [DE-82]. Bullock did not appeal his conviction or sentence.
Bullock filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-135] on February 7, 2014. In his section 2255 motion, Bullock argues that he is entitled to relief on the following grounds: (1) he is entitled to a sentence reduction based on the Fair Sentencing Act ("FSA"), United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and amendments to the Sentencing Guidelines; (2) the pre-FSA regime that applied to him at sentencing violates the Equal Protection Clause; and (3) his attorney provided ineffective assistance of counsel by not challenging or appealing his "patently illegal" sentence. The Government has moved to dismiss Bullock's section 2255 motion on the basis that it is untimely and Bullock has failed to state a claim upon which relief can be granted.
Bullock's Motion is Untimely.
A person convicted of a federal offense has one year to file a section 2255 motion, starting from the latest of the following dates:
(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 ...