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Moore v. United States

United States District Court, E.D. North Carolina, Western Division

April 24, 2017

ANTONIO JERMAINE MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.

         On June 13, 2016, Antonio Jermaine Moore ("Moore") moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his 264-month sentence [D.E. 124]. On November 23, 2016, the government moved to dismiss Moore's motion [D.E. 139] and filed a supporting memorandum [D.E. 140]. On December 19, 2016, Moore responded in opposition [D.E. 148]. As explained below, the court grants the government's motion to dismiss.

         I.

         On January 25, 2010, pursuant to a written plea agreement, Moore pleaded guilty to conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base (crack) and a quantity of cocaine in violation of 21 U.S.C. § 846 (count one) and possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count eight) [D.E. 1, 55]. OnMay 4, 2010, the court calculated Moore's applicable advisory guideline range to be 360 months to life, granted the government's motion for a downward departure under U.S.S.G. § 5K1.1, and sentenced Moore to 264 months' imprisonment on count one and 120 months' imprisonment one count eight, to run concurrently. See [D.E. 79] 9-10, 23; see also [D.E. 68-69]. Moore did not appeal his conviction or sentence.

         In Moore's section 2255 motion, he alleges that his judgment is void under Johnson v. United States. 135 S.Ct. 2551 (2015), and that his sentence is excessive. See [D.E. 124] 4-5. The government disagrees and has moved to dismiss Moore's motion for failure to state a claim upon which relief can be granted. See [D.E. 139, 140].

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests a complaint's legal and factual sufficiency. See Ashcroft v. Iqbal. 556 U.S. 662, 677-78 (2009); Bell All. Corp. v. Twombly 550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of Appeals. 626 F.3d 187, 190 (4th Cir. 2010), affd. 566 U.S. 30 (2012); Giarratflnn v. Tnhnsnn. 521 F.3d 298, 302 (4th Cir. 2008); accord Ericksonv. Pardus. 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions. See, e.g.. Iqbal. 556 U.S. at 678. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano. 521 F.3d at 302 (quotation omitted); see Iqbal. 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g.. Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues & Rights. Ltd.. 551 U.S. 308, 322 (2007); Philips v. Pitt Ctv. Mem'l Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255 motion, the court is not limited to the motion itself. The court may consider "the files and records of the case." 28 U.S.C. § 2255(b); see United States v. McGill. 11 F.3d 223, 225 (1st Cir. 1993). Likewise, a court may rely on its own familiarity with the case. See. e.g.. Blackledee v. Allison. 431 U.S. 63, 74 n.4 (1977); United States v. Dvess. 730 F.3d 354, 359-60 (4th Cir. 2013).

         Section 2255(f) contains a one-year statute of limitations. Section 2255(f) provides that the one-year clock is triggered by one of four conditions, whichever occurs last:

(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, if that right has been newly 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 exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4); see Johnson v. United States. 544 U.S. 295, 299-300 (2005); Whiteside v. United States. 775 F.3d 180, 182-83 (4th Cir. 2014) (en banc). A criminal appeal must be filed within fourteen days after the court enters judgment of conviction. See Fed. R. App. P. 4(b)(1)(A)(i). If a defendant does not appeal his judgment, a conviction becomes final for purposes of section 2255' s statute of limitations when the fourteen-day appeal period expires. See Clay v. United States.537 U.S. 522, 532 (2003). But of United States v. Sanders. 247 F.3d 139, 142 (4th Cir. 2001) (holding that a conviction becomes final for purposes of section 2255's statute of limitations on the date judgment is entered if a defendant fails to file a direct appeal).

         Moore's judgment of conviction was entered on May 4, 2010 [D.E. 69]. Therefore, under Clay, his judgment became final on May 19, 2010, and his period within which to file a section 2255 motion ended on May 19, 2011. See, e.g.. Clay. 537 U.S. at 532. Moore, however, did not file his section 2255 motion until June 13, 2016 [D.E. 124]. Thus, Moore's section 2255 motion is untimely under section 2255(f). Furthermore, Moore has not alleged that any governmental action prevented him from filing a timely motion, that his motion is based on a right newly recognized by the Supreme Court, or that his motion is based on facts that could not have been discovered earlier through the exercise of due diligence. Accordingly, Moore's section 2255 motion is untimely under section 2255(f).

         Alternatively, Moore may not bring his claim under section 2255. Moore's section 2255 motion is premised on an alleged void judgment under Johnson and an excessive sentence. Johnson. however, has nothing to do with Moore's advisory guideline range. See PSR ¶¶ 24-36, 58-78. Moreover, a petitioner generally may not use section 2255 to challenge the calculation of his advisory guideline range. See United States v. Foote.784 F.3d 931, 936-40 (4th Cir. 2015); United States v. Present.190 F.3d 279, ...


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