United States District Court, W.D. North Carolina, Asheville Division
Richard L. Voorhees United States District Judge.
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
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).
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).
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.
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.
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:
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
(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
(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