United States District Court, E.D. North Carolina, Southern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
16, 2014, Petera Micale Carlton ("Carlton") moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his 288-month sentence based on the alleged miscalculation of
his advisory guideline range and Alleyne v. United
States, 133 S.Ct. 2151 (2013) [D.E. 82, 84]. On
September 11, 2014, Carlton filed a motion to vacate his
sentence based on United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc) [D.E. 83]. On May 17, 2016,
Carlton filed an amended motion to vacate his sentence under
section 2255 based on Johnson v. United States, 135
S.Ct. 2551(2015)[D.E. 95]. On June 11, 2016, Carlton filed a
second amended motion to vacate his sentence under section
2255 based on Johnson [D.E. 100] and a supporting
memorandum [D.E. 101]. On July 5, 2016, the court stayed the
action pending a the Supreme Court's decision in
Beckles v. United States, See [D.E. 103].
On May 26, 2017, the government moved to lift the stay and
dismiss Carlton's motions [D.E. 108] and filed a
supporting memorandum [D.E. 109]. As explained below, the
court grants the government's motion to lift the stay and
dismiss and dismisses Carlton's motions.
December 14, 2009, pursuant to a written plea agreement,
Carlton pleaded guilty to using and carrying a firearm in
furtherance of a drug-trafficking crime and aiding and
abetting in violation of 18 U.S.C. §§ 924(c) and 2
[D.E. 40, 42]. On April 8, 2010, the court calculated
Carlton's applicable advisory guideline range to be 262
to 327 months' imprisonment, and sentenced Carlton to 288
months' imprisonment. See [D.E. 49, 107]. Carlton did not
appeal his conviction or sentence.
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), aff'd,
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., Blackledge 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 his judgment, a conviction becomes final for purposes
of section 225 5' s statute of limitations when the
fourteen-day appeal period expires. See Clay v. United
States, 537 U.S. 522, 532 (2003). But c£
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
April 20, 2010, the court entered Carlton's judgment of
conviction [D.E. 49]. Therefore, under Clay, his
judgment became final on May 4, 2010, and his period within
which to file a section 2255 motion ended on May 4, 2011.
See, e.g., Clay, 537 U.S. at 532. Carlton,
however, did not file his first section 2255 motion until
June 16, 2014. See [D.E. 82, 84]. Thus, Carlton's section
2255 motion and subsequent amendments are untimely under
section 2255(f). Furthermore, Carlton has not alleged that
any governmental action prevented him from filing a timely
motion, that his motions are based on a right newly
recognized by the Supreme Court, or that his motions are
based on facts that could not have been discovered earlier
through the exercise of due diligence. Accordingly,
Carlton's section 2255 motions are untimely under section
Carlton may not bring his claims under section 2255. 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. Pregent, 190 F.3d 279,
283-84 (4th Cir. 1999): see also Whiteside, 775 F.3d
at 183-87; United States v. Mikalajunas, 186 F.3d
490, 495-96 (4th Cir. 1999). Thus, the claims fail.
Carlton's plea agreement contains an appellate waiver.
See [D.E. 42] ...