United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's motion
pursuant to 28 U.S.C. § 2255. The government has moved
to dismiss the petition, and the matter is ripe for ruling.
For the reasons discussed below, the government's motion
to dismiss is granted and the § 2255 petition is
pleading guilty pursuant to a plea agreement to conspiracy to
distribute and possess with intent to distribute twenty-eight
grams or more of cocaine base and a quantity of cocaine in
violation of 21 U.S.C. §§ 841 and 846, petitioner,
Lomachael Grice, was sentenced on January 7, 2015, to a term
of 108 months' imprisonment. Petitioner did not file a
direct appeal. Petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255 on August 3, 2016, alleging
that his advisory Sentencing Guidelines range should be
reduced for his having had a minor role in the offense,
citing U.S.S.G. § 3B 1.2(b). The government has moved to
dismiss petitioner's § 2255 motion for failure to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). Petitioner has failed to respond to the motion to
12(b)(6) motion must be granted if the pleading fails to
allege enough facts to state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). See also Rule 12, Rules
Governing Section 2255 Proceedings (Rules of Civil Procedure
apply to section 2255 proceedings).
motion to vacate under § 2255 must be filed within one
year of the latest of four triggering events: (1) the date
the judgment of conviction becomes final; (2) the date on
which an impediment to making a motion that is created by the
government is removed; (3) the date the Supreme Court
initially recognizes a right that is made retroactively
applicable to cases on collateral review; or (4) the date on
which new facts are discovered through the exercise of due
diligence to support a claim. 28 U.S.C. §
petitioner did not file a direct appeal, his conviction
became final upon the expiration of the fourteen-day period
for noticing a direct appeal, or January 21, 2015. See
Clay v. United States, 537 U.S. 522, 525 (2003);
United States v. Diallo, 581 Fed.App'x 226, 227
(4th Cir. 2014). Petitioner's § 2255 motion was
filed in August 2016, well-outside the filing period provided
by § 2255(f)(1). Petitioner does not appear to rely on
any other provision of § 2255(f) as he has not
identified any government impediment which has been removed,
he has not relied on a Supreme Court decision made applicable
retroactively, nor has he identified any new facts discovered
through due diligence to support his claim. His § 2255
petition is therefore untimely.
equitable tolling is available to toll the limitations period
in this context, see Holland v. Florida, 560 U.S.
631, 649 (2010), petitioner has identified no basis upon
which to invoke equitable tolling. Petitioner relies on a
recent amendment to the Sentencing Guidelines, Amendment 794,
to argue that his petition should be deemed timely, but has
not identified any court which has applied such amendment
retroactively on collateral review. See, e.g. United
States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir.
2016) (holding that Amendment 794 is retroactively applicable
to cases on direct appeal); United States v.
Perez-Carrillo, No. 7.-14CR00050, 2016 WL 4524246, at *1
(W.D. Va. Aug. 26, 2016) ("The United States Sentencing
Commission did not make Amendment 794 retroactive to all
cases."). That Amendment 794 is not retroactively
applicable on collateral review would further serve as a
basis upon which to dismiss petitioner's § 2255
motion if it were deemed to have been timely filed. See
also United States v. Newbold, 791 F.3d 455, 459 (4th
Cir. 2015) (discussing universe of errors which can be
corrected under § 2255 and noting that, generally, an
ordinary misapplication of the Guidelines is not such an
these reasons, the government's motion to dismiss
petitioner's § 2255 motion is granted.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
As reasonable jurists would not find this Court's
dismissal of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
the government's motion to dismiss [DE 44] is GRANTED and
petitioner's motion to vacate pursuant to 28 U.S.C.
§ 2255 [DE 40] is ...