United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge.
27, 2016, James Boyd McKenith ("McKenith") moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his 60-month sentence based on the alleged miscalculation of
his advisory guideline range under Johnson v. United
States. 135 S.Ct. 2551(2015). See [D.E.109] 4, 9-10. On
November 17, 2016, the government moved to dismiss
McKenith's motion [D.E. 114] and filed a supporting
memorandum [D.E. 115]. As explained below, the court grants
the government's motion to dismiss and dismisses
McKenith's section 2255 motion.
October 14, 2014, pursuant to a written plea agreement,
McKenith pleaded guilty to conspiracy in violation of 18
U.S.C. § 371. See [D.E. 68, 71]. On February 10, 2015,
the court calculated McKenith's advisory guideline range
to be 60 months' imprisonment and sentenced McKenith to
60 months' imprisonment. See [D.E. 87, 91, 92]. McKenith
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), 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 (1 st 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. 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)(l)(A)(i). If a defendant does not
appeal his 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 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
February 13, 2015, the court entered McKenith's judgment
of conviction [D.E. 91]. Therefore, under Clay, his
judgment became final on February 27, 2015, and his period
within which to file a section 2255 motion ended on February
26, 2016. See, e.g.. Clay. 537 U.S. at 532.
McKenith, however, did not file his section 2255 motion until
June 27, 2016. See [D.E. 109]. Thus, McKenith's section
2255 motion is untimely under section 2255(f). Furthermore,
McKenith has not plausibly 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, McKenith's section 2255 motion is
untimely under section 2255(f).
McKenith may not bring his claim 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. Present 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 claim fails.
McKenith's plea agreement contains an appellate waiver.
See [D.E. 71 ] ...