Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carlton v. United States

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

June 7, 2017

PETERA MICALE CARLTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE

         On June 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.

         I.

         On 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.

         A 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).

         Section 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 final;
(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 governmental action;
(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 direct appeal).

         On 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 2255(f).

         Alternatively, 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.

         Alternatively, Carlton's plea agreement contains an appellate waiver. See [D.E. 42] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.