United States District Court, E.D. North Carolina, Western 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 143]. The government has moved to dismiss
the petition, [DE 149], petitioner has responded, [DE 152],
and the matter is ripe for disposition. For the reasons
discussed below, petitioner's motion is found to be
timely and the government is directed to respond to the
merits of petitioner's motion.
April 21, 1998, petitioner pleaded guilty, pursuant to a
written plea agreement, to employment of use of a person
under the age of 18 to possess with the intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 861 and
841. [DE 14]. On September 24, 1998, the Court . sentenced
petitioner to 292 months' imprisonment and 10 years'
supervised release. [DE 23]. On June 21, 2016, the United
States Court of Appeals for the Fourth Circuit authorized
petitioner to file a second or successive § 2255 motion
based on Johnson v. United States, 135 S.Ct. 2551
(2015). [DE 139].
August 29, 2016, petitioner filed the instant motion under 28
U.S.C. § 2255. [DE 143]. Petitioner argues that, in
light of Johnson, he is no longer a career offender.
[DE 143 at 4]. The government responded by filing a motion to
dismiss, arguing that petitioner's motion is not timely.
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. §
Johnson v. United States, the Supreme Court
addressed the constitutionality of the residual clause of
ACCA's violent felony definition, which defines a violent
felony to include one which "otherwise involves that
presents a serious potential risk of physical injury to
another." 135 S.Ct. 2557. The Court held that the
residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
Supreme Court decided Johnson v. United States on
June 26, 2015, and, accordingly, the date by which a
petitioner was required to file a § 2255 motion
asserting relief under that decision was June 26, 2016. The
United States Court of Appeals for the Fourth Circuit
authorized petitioner to file a second or successive §
2255 motion based on Johnson on June 21, 2016. [DE
139]. Because petitioner did not then file the instant §
2255 motion until August 29, [DE 143], the government has
moved to dismiss.
equitable tolling is available to toll the limitations period
in this context. See Holland v. Florida, 560 U.S.
631, 649 (2010). A petitioner may avail himself of equitable
tolling if he establishes that he has been reasonably
diligent in pursuing his rights but extraordinary
circumstances beyond his control made it impossible for him
to file the motion on time. Id. at 2562.
was not granted leave by the Fourth Circuit to file this
successive § 2255 motion until June 21, 2016, just five
days before the one-year deadline expired on June 26, 2016.
Moreover, in his response, petitioner demonstrated that he
was sufficiently diligent in pursuing his rights. Petitioner
submitted a letter from a deputy clerk at the Fourth Circuit
which indicates that, upon approval of petitioner's
§ 2244 motion for authorization to file a second or
successive § 2255 motion on June 21, the Fourth Circuit
forwarded petitioner's attached § 2255 motion to
this Court. [DE 152-1]. Petitioner also contacted the Federal
Public Defender's Office, the Fourth Circuit Clerk [DE
152-1], and the Clerk's office for the District Court for
Eastern District of North Carolina [DE 140] to ask for
assistance with the next step in filing his motion with this
Court. [DE 152]. While there is no docket entry in this
matter indicating receipt of that attached § 2255 motion
the Fourth Circuit forwarded to this Court, and while
petitioner did not file this motion himself until August 29,
the Court finds that these circumstances merit equitable
tolling of the one-year deadline. Accordingly,
petitioner's motion will be deemed timely filed.
for the foregoing reasons, petitioner's motion to vacate
pursuant to 28 U.S.C. § 2255 [DE 143] is deemed timely
filed and the government is therefore DIRECTED to respond to
the merits of ...