United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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].
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).
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
(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, 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
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
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, ...