United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER comes before the Court on consideration of Petitioner's "Motion to Vacate Sentence under 28 U.S.C. § 2255" [Doc. 1] and the Government's Response to Petitioner's Motion to Vacate and Motion to Dismiss as Untimely [Doc. 6]. For the reasons that follow, Petitioner's § 2255 motion will be dismissed.
On November 15, 2007, Petitioner was charged in a Bill of Indictment with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count One); possession with intent to distribute five (5) or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count Two); and possession of a firearm during and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). [Criminal Case No. 3:07-cr-00260-MR ("CR"), Doc. 1: Bill of Indictment]. On February 4, 2008, Petitioner entered into a written plea agreement with the Government pursuant to which he agreed to plead guilty to Counts One and Two in exchange for the Government's agreement to dismiss Count Three. [CR Doc. 12: Plea Agreement].
Prior to Petitioner's sentencing, the United States Probation Office prepared a presentence report ("PSR"), in which the probation officer noted that Petitioner qualified as a career offender under U.S.S.G. § 4B1.1 and calculated a total offense level of 31 based on his career offender status. [CR Doc. 17: PSR at ¶¶ 29-31]. With a criminal history category of VI, Petitioner's Guidelines range was calculated to be 188 to 235 months' imprisonment for Count Two. [Id. at ¶ 76]. The probation officer further noted that because the statutory maximum sentence of imprisonment for Count One was less than the low end of the guideline range for Count Two, the guideline term of imprisonment for Count One was 120 months. [Id. at ¶ 76 (citing U.S.S.G. § 5G1.1(a))].
On June 25, 2008, Petitioner was sentenced to a term of 120 months' imprisonment on Count One, and a concurrent term of 188 months' imprisonment on Count Two. The Court entered its Judgment on July 8, 2008. [CR Doc. 20: Judgment]. Petitioner did not appeal.
On November 8, 2012, Petitioner, through counsel, filed the present motion to vacate, arguing that, pursuant to the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), his prior North Carolina convictions were not felony drug offenses and therefore he no longer qualifies as a career offender pursuant to U.S.S.G. § 4B1.1. [Doc. 1]. The Government opposes the Petitioner's motion and moves to dismiss this action as untimely. The parties' contentions will be addressed below.
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. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
A. Petitioner's Motion is Untimely
A motion to vacate pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitation, which runs from:
(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 presented ...