United States District Court, E.D. North Carolina, Eastern Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. (DE 149). The government filed a motion to dismiss (DE 154), and petitioner responded. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr., entered memorandum and recommendation (M&R) wherein it is recommended that the court dismiss petitioner's motion to vacate. (DE 169). Petitioner filed objections to the M&R. In this posture, the issues rased are ripe for ruling. For the reasons stated below, this matter will be dismissed.
Petitioner pleaded guilty to attempted robbery of a business in interstate commerce and aiding and abetting, in violation of 18 U.S.C. §§ 1951 and 2 ("Count 1"); and using and carrying a firearm during and in relation to a crime of violence and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A) and 2 ("Count 2"). On March 18, 2011, the court sentenced petitioner to a term of imprisonment of 37 months as to Count 1 and 120 months as to Count 2, to be served consecutively, producing a total term of 157 months. Petitioner did not appeal. On August 2, 2013, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that his mandatory minimum sentence of 10 years was erroneous in light of Alleyne v. United States, 113 S.Ct. 2151 (2013). The government contends that petitioner's motion is barred by the waiver in his plea agreement, that it is untimely, and that the claim is without merit.
A. Statute of Limitations
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 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.
28 U.S.C. § 2255(f)(1-4).
Petitioner's motion is untimely under each prong of § 2255(f). It was filed more than one year after the judgment became final. There is no alleged impediment to making the motion created by governmental action. The Supreme Court has not recognized a new rule of substantive law retroactively applicable to cases on collateral review on the basis asserted here. See United States v. Stewart, 540 F.Appx. 171, 172 n.* (4th Cir. 2013) (stating that Alleyne is not retroactively applicable to cases on collateral review). And, no new facts supporting the claims have been discovered.
Petitioner suggests, nonetheless, that he is actually innocent of the mandatory minimum sentence in this case as a basis for excusing his untimeliness. Accepting petitioner's suggestion, however, would render the limitations rule in (f)(3) meaningless. In addition, no miscarriage of justice has occurred where the sentence imposed in this case was not greater than the statutory maximum applicable to the offense absent alleged enhancement. See United States v. Foote, ___ F.3d ___, No. 13-7841, 2015 WL 1883538, at *11 (4th Cir. 2015) ("The language of § 2255(a) demonstrates that collateral review is available for defects of a constitutional magnitude and other defects that are equally fundamental, such as ...