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Noel v. United States

United States District Court, W.D. North Carolina, Asheville Division

February 8, 2017

BRYAN KEITH NOEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Richard L. Voorhees United States District Judge.

         THIS MATTER is before the Court following receipt of Petitioner's response to the Court's prior Order requiring Petitioner to explain why his 28 U.S.C. § 2255 motion to vacate is not time-barred and, if it is time-barred, why equitable tolling should apply. Also pending before the Court is Petitioner's Motion to File Oversize Brief, (Doc. No. 2), Petitioner's Motion to Proceed in Forma Pauperis, (Doc. No. 3), Petitioner's Motion Requesting that attached 4 Subpoenas be Issued and Served at Gov't Expense, (Doc. No. 5), Petitioner's Motion to Proceed in Forma Pauperis, (Doc. No. 6), and Petitioner's Motion Requesting that attached 5 Subpoenas be Issued and Served at Govt. Expense, (Doc. No. 8). For the following reasons, the Court dismisses the Section 2255 petition as time-barred.

         I. BACKGROUND

         On March 4, 2010, a jury found Petitioner guilty of bank fraud and other crimes arising out of Petitioner's participation in a fraudulent investment scheme in which he, his co-conspirator Alexander Klosek, and others defrauded investors, mostly elderly clients, of around $7 million. (Criminal Case No. 1:09-cr-57-RLV-1, Doc. No. 96: Jury Verdict; Doc. No. 107 at ¶¶ 4, 23: PSR). The scheme involved, among other things, mailing investors false quarterly statements that did not notify investors of the diminished value of their assets and by concealing that investor funds were being diverted to unauthorized investments. (Id., Doc. No. 107 at ¶ 4). Specifically, the jury found Petitioner guilty of conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1341, 1349; mail fraud, and aiding and abetting such, in violation of 18 U.S.C. §§ 1341, 2; conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1957, 1956(h); bank fraud, in violation of 18 U.S.C. § 1344; making false statements to a bank, in violation of 18 U.S.C. § 1014; money laundering, and aiding and abetting such, in violation of 18 U.S.C. §§ 1957, 2; and false oath in bankruptcy proceeding, in violation of 18 U.S.C. § 152(2). (Id., Doc. No. 116: Judgment).

         On February 24, 2011, this Court sentenced Petitioner to 300 months of imprisonment. (Id., Doc. No. 116: Judgment). Judgment was entered on March 1, 2011. (Id.). Petitioner appealed, and on December 28, 2012, the Fourth Circuit Court of Appeals affirmed the conviction and sentence. United States v. Noel, 502 Fed.Appx. 284 (4th Cir. 2012). Petitioner filed a petition for writ of certiorari, which the Supreme Court denied on October 7, 2013. Noel v. United States, 134 S.Ct. 366 (2013). Petitioner's conviction therefore became final for purposes of Section 2255(f)(1) on October 7, 2013. See United States v. Thomas, 203 F.3d 350 (5th Cir. 2000). Petitioner filed his Section 2255 motion to vacate more than three years later, on December 21, 2016, placing the motion to vacate in the prison system for mailing on December 18, 2016.

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without a response from the Government and without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 by imposing a one-year statute of limitations period for the filing of a motion to vacate. Such amendment provides:

         A 1-year period of limitation shall apply to a motion under this section. The 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 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 ...

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