United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
26, 2016, Antonio Levon Morris ("Morris") moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his 120-month sentence based on the alleged miscalculation of
his advisory guideline range under Johnson v. United
States. 135 S.Ct. 2551 (2015) [D.E. 30]. On February 13,
2017, the court stayed the action pending the Supreme
Court's decision in Beckles v. United States.
See [D.E. 39]. On June 8, 2017, the government moved to lift
the stay and to dismiss Morris's motion [D.E. 42] and
filed a supporting memorandum [D.E. 43]. As explained below,
the court grants the government's motion to lift the stay
and to dismiss and dismisses Morris's motion.
18, 2009, pursuant to a written plea agreement, Morris
pleaded guilty to possession of firearms by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924. See
[D.E. 17, 18]. OnxOctober 15, 2009, the court
calculated Morris's advisory guideline range to be 120
months' imprisonment and sentenced Morris to 120
months' imprisonment. See [D.E. 28]. Morris 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. Twomblv. 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 Ctv. 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. Dvess. 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 225 5' s statute of limitations on
the date judgment is entered if a defendant fails to file a
October 15, 2009, the court entered Morris's judgment of
conviction [D.E. 28]. Therefore, under Clay, his
judgment became final on October 29, 2009, and his period
within which to file a section 2255 motion ended on October
28, 2010. See, e.g.. Clay, 537 U.S. at 532. Morris,
however, did not file his first section 2255 motion until
June 26, 2016. See [D.E. 30]. Thus, Morris's section 2255
motion is untimely under section 2255(f). Furthermore, Morris
has not alleged that any governmental action prevented him
from filing a timely motion, that his motion is based on a
right newly recognized by the Supreme Court, or that his
motion is based on facts that could not have been discovered
earlier through the exercise of due diligence. Accordingly,
Morris's section 2255 motion is untimely under section
Morris may not bring his claim under section 225 5. 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