United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
August 15, 2016, Deborah Murray ("Murray") moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
her 60-month sentence [D.E. 44, 45]. On November 28, 2016,
the government moved to dismiss Murray's motions [D.E.
49] and filed a supporting memorandum [D.E. 50]. As explained
below, the court grants the government's motion to
September 17, 2012, pursuant to a written plea agreement,
Murray pleaded guilty to conspiracy to commit bank robbery in
violation of 18 U.S.C. § 371 [D.E. 27, 39]. On March 6,
2013, the court calculated Murray's applicable advisory
guideline range to be 60 months, and sentenced Murray to 60
months' imprisonment. See [D.E. 40]. Murray did not
appeal her conviction or sentence.
Murray's section 2255 motions, she claims that she is
entitled to a minor role adjustment under section 2255,
Amendment 794, and U.S.S.G. § 3B1.2. See [D.E. 44, 45].
The government disagrees and has moved to dismiss
Murray's motion for failure to state a claim upon which
relief can be granted. See [D.E. 49, 50].
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 Atl. 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); Giarratano v. Johnson. 521 F.3d 298,
302 (4th Cir. 2008); accord Erickson v. 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 Cty. 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. Dyess. 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 her 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 cf 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 March 12, 2013 [D.E.
39]. Therefore, under Clay, her judgment became
final on March 26, 2013, and her period within which to file
a section 2255 motion ended on March 26, 2014. See, e.g..
Clay. 537 U.S. at 532. Murray, however, did not file her
section 2255 motion until August 15, 2014 [D.E. 44]. Thus,
Murray's section 2255 motion is untimely under section
2255(f). Furthermore, Murray has not alleged that any
governmental action prevented her from filing a timely
motion, that her motion is based on a right newly recognized
by the Supreme Court, or that her motion is based on facts
that could not have been discovered earlier through the
exercise of due diligence. Accordingly, Murray's section
2255 motion is untimely under section 2255(f).
Murray may not bring her claim under section 2255. A
petitioner generally may not use section 2255 to challenge
the calculation of her advisory guideline range. See
United States v. Foote. 784 F.3d 931, 936-40 (4th
Cir. 2015); United States v. Pregent190 F.3d 279,
283-84 (4th Cir. 1999); see also Whiteside. ...