United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 85]. The government has moved to dismiss the
petition, [DE 89], petitioner has responded, [DE 93], and the
matter is ripe for disposition. For the reasons discussed
below, the government's motion to dismiss is granted and
petitioner's motion is dismissed.
January 15, 2013, a petit jury sitting in the Eastern
District of North Carolina found petitioner guilty of
distribution of a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (Counts One and Four);
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) and
924(c)(1)(A)(i) (Count Two); and possession of a firearm not
registered in the National Firearms Registration and Transfer
Record, in violation of 26 U.S.C, §§ 5841, 5861(d),
and 5871 (Count Three). [DE 48, 49]. On July 19, 2013, the
Court sentenced petitioner to 72 months' imprisonment on
Counts One, Three, and Four (to run concurrently with each
other) and 60 months' imprisonment on Count Two (to run
consecutively with the other counts). [DE 62, 63]. Petitioner
appealed his judgment, and the United States Court of Appeals
for the Fourth Circuit affirmed in a published opinion issued
on October 29, 2014. [DE 74]. On March 2, 2015, the Supreme
Court of the United States denied certiorari. Pineda v.
United States, 135 S.Ct. 1515 (March 2, 2015).
10, 2016, petitioner filed the instant motion under 28 U.S.C.
§ 2255. [DE 85 at 9]. Petitioner alleges that counsel
was constitutionally ineffective at sentencing and in the
advice given to petitioner before he went to trial. [DE 85 at
3-4]. The government responded by moving to dismiss the
motion as untimely. [DE 90].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"Under § 2255(b), [u]nless the motion and files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court must grant a prompt hearing
to determine the issues and make findings of fact and
conclusions of law with respect thereto." United
States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010)
(internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
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. §
judgment became final on the day the Supreme Court denied
certiorari, on March 2, 2015. Pineda v. United
States, 135 S.Ct. 1515 (March 2, 2015). Pursuant to 28
U.S.C. § 2255(f)(1), petitioner had one year from March
2, 2015 to file the instant motion. Petitioner, however, did
not file a motion until over four months after the deadline.
[DE 85]. 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. Thus,
petitioner's motion is 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 alleges that
his delay occurred because he thought that his counsel had
filed a certiorari petition and that he was "waiting on
a response." [DE 85 at 8]. Petitioner, however, has not
alleged that he was unable to research the status of his
certiorari petition on his own. Likewise, he has not shown
how he acted diligently in waiting over a year after the
Court of Appeals disposed of his case to file anything with
this Court or the Court of Appeals.
these reasons, the government's motion to dismiss
petitioner's § 2255 motion is granted.
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability shall not
issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also 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 (4th ...