United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
MATTER is before the Court following the Court's
receipt of Petitioner's response to the Court's prior
order requiring Petitioner to explain why his 28 U.S.C.
§ 2255 motion to vacate is not time-barred and, if it is
time-barred, why equitable tolling should apply. See
(Doc. Nos. 2, 3). For the following reasons, the Court
dismisses the § 2255 petition as time-barred.
26, 2001, pro se Petitioner Jonathan Donnell Johnson pled
guilty in this Court, pursuant to a written plea agreement,
to conspiracy to possess with intent to distribute and
distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846, and attempted escape, in
violation of 18 U.S.C. § 751(a). (Criminal Case Nos.
3:00-cr-136-GCM-3, 3:01-cr-22-GCM, Doc. No. 80: Plea
Agreement; Doc. No. 124: Judgment). On March 26, 2002, this
Court sentenced Petitioner to a total of 360 months of
imprisonment. (Id.). Judgment was entered on April
12, 2002, and Petitioner did not appeal. (Id.).
Petitioner placed the Section 2255 motion to vacate in the
prison system for mailing on March 21, 2017, and it was
stamp-filed in this Court on March 27, 2017. In the motion to
vacate, Petitioner appears to be attempting to bring a claim
for a due process violation based on United States v.
Booker, 543 U.S. 220 (2005).
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with "any attached exhibits and the record of prior
proceedings . . ." in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without a
response from the Government and without an evidentiary
hearing based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (the "AEDPA"). Among other things, the
AEDPA amended 28 U.S.C. § 2255 by imposing a one-year
statute of limitations period for the filing of a motion to
vacate. Such amendment provides:
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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 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