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Pinion v. United States

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

May 23, 2017

ARMON LEWIS PINION, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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.[1]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.

         BACKGROUND

         On July 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).

         On 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 recharacterization.

         In his § 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.[2] S e e A m . Mot. (DE 86).

         On 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.

         COURT'S DISCUSSION

         A. Standard of Review

         A 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).

         B. Analysis

         1. Motion to Vacate

         Petitioner 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.

         A one-year period of limitation applies to motions filed pursuant to 28 U.S.C. § 2255. See 28 U.S.C. ยง 2255(f). The ...


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