United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255, as corrected and amended (DE 72, 76, 86),
and petitioner's motion to amend (DE 82). Also before the
court is the government's motion to dismiss, made
pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE
78). The issues raised are ripe for ruling.For the reasons
that follow, the court dismisses petitioner's motion to
vacate, denies petitioner's motion to amend and amended
motion, and grants the government's motion to dismiss.
9, 2009, petitioner was charged in a single-count superseding
indictment with possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924. At his
arraignment, held on December 7, 2009, petitioner pleaded not
guilty to the superseding indictment. Following a two-day
trial, the jury returned a guilty verdict. On March 25, 2010,
the court sentenced petitioner to 120 months'
imprisonment, and petitioner appealed the court's
judgment. On October 31, 2011, the Fourth Circuit Court of
Appeals affirmed. See United States v. Pinion, 452
F. App'x 339 (4th Cir. 2011). Petitioner then filed a
petition for writ of certiorari in the United States Supreme
Court. The petition was denied on May 29, 2012. See
Pinion v. United States, 132 S.Ct. 2698 (2012).
August 8, 2013, petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. See
Pinion v. Apker, 5:13-HC-2178-FL. On April 8, 2014, on
preliminary review under 28 U.S.C. § 2243, the court
provided petitioner with notice, pursuant to Castro v.
United States, 540 U.S. 375 (2003), that it intended to
recharacterize his motion as an attempt to file a motion
under 28 U.S.C. § 2255. Petitioner consented to the
§ 2255 motion, petitioner raises the following claims:
1) his indictment failed to charge an offense under 18 U.S.C.
§ 924(c); 2) he was wrongly convicted; and 3) he is
“actually innocent.” See Mot. Vacate (DE
76). In the government's motion to dismiss, filed on June
4, 2014, it argues that petitioner's § 2255 motion
should be dismissed as untimely. On June 13, 2016, petitioner
filed his motion to amend, seeking to add a claim challenging
the calculation of his base offense level in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
See Mot. Amend (DE 82). On June 24, 2016,
petitioner's appointed counsel filed an amended §
2255 motion, arguing that petitioner's base offense level
was erroneously calculated, and he is entitled to
resentencing under Johnson. S e e A m . Mot.
August 15, 2016, this case was stayed pending the Supreme
Court's final decision in Beckles v. United
States, 15-8544. On April 14, 2017, the court lifted the
stay and directed petitioner to show cause why his §
2255 motion should not be dismissed in light of Beckles
v. United States, 137 S.Ct. 886 (2017). Both petitioner
and the government have responded.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b).
Motion to Vacate
raises three claims in his § 2255 motion. Mot. Vacate
(DE 72) at 9-14; Mot. Vacate (DE 76) at 4-7. Because
petitioner's motion is untimely, it must be dismissed.
one-year period of limitation applies to motions filed
pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2255(f). The ...