United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
On August 1, 2012, this Court (per then-Chief United States District Judge James A. Beaty, Jr.) entered a Judgment against Petitioner imposing, inter alia, an 82-month prison term, upon his guilty plea to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). (Docket Entry 11; see also Docket Entry 1 (Indictment); Docket Entry 10 (Plea Agreement); Docket Entry 15 (Plea Hrg. Tr.); Docket Entry 16 (Sent'g Hrg. Tr.).) On January 31, 2013, the United States Court of Appeals for the Fourth Circuit affirmed. United States v. Pemberton, 508 F.Appx. 234 (4th Cir. 2013). Petitioner did not seek certiorari review in the United States Supreme Court. (Docket Entry 23, ¶ 9(g).)
On November 10, 2014, the Court stamped-as-filed Petitioner's undated "Motion for Judicial Notice" in which he asserted that the inclusion in his advisory Sentencing Guidelines calculation of an offense level increase under U.S.S.G. § 2K2.1(b)(6)(B), based on his possession of a firearm in connection with a robbery, violated federal constitutional principles announced in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), because state officials previously had dismissed a related, state robbery charge. (Docket Entry 20.) The Court promptly dismissed Petitioner's Motion for Judicial Notice as procedurally-defective and sent him a form for filing a motion under 28 U.S.C. § 2255. (Docket Entries 21, 22, 25.) On December 1, 2014, the Court docketed Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Section 2255 Motion"), which he signed as submitted to prison officials for mailing on November 27, 2014. (Docket Entry 23.) The United States has moved for dismissal (Docket Entry 27) and Petitioner has responded (Docket Entry 29). The Court should dismiss Petitioner's Section 2255 Motion as untimely.
Petitioner's Section 2255 Motion asserts that, in light of the decisions in Alleyne and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), the offense level increase under U.S.S.G. § 2K2.1(b)(6)(B), for possessing a firearm in connection with a robbery, violated the United States Constitution, because state officials previously had dismissed a related, robbery charge. (Docket Entry 23, ¶ 12(Ground One)(a) & (Ground Two)(a).) "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 to file a claim under Section 2255 commenced on or about May 1, 2013, i.e., 90 days after the Fourth Circuit affirmed his conviction and his time to seek certiorari review passed. Clay v. United States, 537 U.S. 522 (2003). That one-year period expired on or about May 1, 2013, more than six months before Petitioner filed his procedurally-defective Motion for Judicial Notice and almost seven months before he submitted his Section 2255 Motion. Accordingly, if Paragraph (1) of Subsection 2255(f) applies, Petitioner's Section 2255 Motion is untimely (absent any showing of entitlement to equitable tolling, see generally Holland v. Florida, 560 U.S. 631 (2010) (discussing equitable tolling in analogous context of 28 U.S.C. § 2244(d))).
Petitioner does not argue that Paragraph (2) of Subsection 2255(f) applies to his Section 2255 Motion. (See Docket Entry 23, ¶ 18; Docket Entry 29.) To the extent Petitioner seeks application of Paragraph (3) of Subsection 2255(f) (see Docket Entry 23, ¶ 18 (stating, in response to inquiry as to timeliness, "Simmons is retroactive [and] Alleyne is a Supreme Court case in the 4th Cir."), his effort falls short because the United States Supreme Court did not decide Simmons and "Alleyne has not been made retroactively applicable to cases on collateral review, " United States v. Stewart, 540 F.Appx. 171, 172 n.* (4th Cir. Sept. 27, 2013); see also 28 U.S.C. § 2255(f)(3) (limiting its application to Supreme Court decisions "made retroactively applicable to cases on collateral review"); United States v. Thomas, Nos. 3:14CV345FDW, 3:92CR284FDW3, 2014 WL 2931077, at *2 (W.D. N.C. June 30, 2014) (unpublished) ("[The] [p]etitioner contends that the petition is timely under § 2255(f)(3) because it was filed within one year of Alleyne. Section 2255(f)(3) does not apply to render the petition timely, as Alleyne has not been held to be retroactive on collateral review." (internal citation omitted)), appeal dismissed, 585 F.Appx. 288 (4th Cir. 2014).
Nor could Petitioner rely on any change in the law affected by Alleyne or Simmons to secure either delayed accrual under Paragraph (4) of Subsection 2255(f) or equitable tolling. See Whiteside v. United States, 775 F.3d 180, 183-87 (4th Cir. 2014) (en banc) (holding that court rulings generally do not trigger application of Paragraph (4) of Subsection 2255(f) or warrant equitable tolling and applying that general rule as to Simmons); United States v. Mitchell, No. 2:01CR82-2, 2014 WL 5106402, at *4 (D. Vt. Oct. 10, 2014) (unpublished) (deeming equitable tolling unavailable because "the circumstance of the new rule announced in Alleyne is not extraordinary... [particularly given that] § 2255(f)(3) covers the possibility of new rights announced by the Supreme Court"); Edwards v. United States, No. 3:12CV717WHA, 2014 WL 5113607, at *3 (M.D. Ala. Sept. 29, 2014) (unpublished) (declining to grant equitable tolling as to Alleyne claim because "judicial decisions where a defendant is a non-party do not constitute extraordinary circumstances"); United States v. Lester, No. 1:04CR70, 2014 WL 988633, at *2 (W.D. Va. Mar. 13, 2014) (unpublished) ("[T]he court decision in... Alleyne... [is] not [a] fact for purposes of § 2255(f)(4)....").
Petitioner's Section 2255 Motion also appears to seek equitable tolling based on the assertion that he "never understood [his] rights of filen [sic] motions and was not fully explain [sic] to by [his] lawyer the nature of [his] charge." (Docket Entry 23, ¶ 18.) The latter portion of that statement has no bearing on Petitioner's failure to file a Section 2255 Motion within a year of his conviction becoming final. See Johnson v. Hunt, No. 1:08CV20-03-MU, 2008 WL 624431, at *3 (W.D. N.C. Mar. 4, 2008) (unpublished) ("Whether [the] [p]etitioner received ineffective assistance of counsel at trial or on appeal is not a reason for failing to file a federal habeas petition on time."), appeal dismissed, 305 F.Appx. 973 (4th Cir. 2009). Further, to the extent Petitioner contends he lacked knowledge of his right to file a Section 2255 Motion, that ...