United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. The government has moved to dismiss
petitioner's § 2255 motion pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Petitioner has
responded to the motion to dismiss and the matter is ripe for
ruling. For the reasons discussed below, the government's
motion is granted.
was sentenced by this Court to a term of 105 months'
imprisonment after pleading guilty to two counts of being a
felon in possession of a firearm and ammunition. [DE 27].
Petitioner noticed a direct appeal, and the court of appeals
affirmed this Court's judgment on June 26, 2013. [DE 37].
Petitioner filed a petition for writ of certiorari in the
United States Supreme Court, which was denied on November 4,
2013. Harris v. United States, 134 S.Ct. 540, 541
(2013). Petitioner filed an unsigned motion pursuant to 28
U.S.C. § 2255 on May 1, 2017, and filed a signed §
2255 motion on May 9, 2017. Petitioner contends that count
one of the indictment is the same charge and conviction to
which he pled guilty in state court, in violation of
petitioner's Fifth Amendment rights, and that defense
counsel was ineffective and negligent by allowing petitioner
to plead guilty to count one, in violation of
petitioner's Sixth Amendment rights.
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that
is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Rule 12, Rules Governing Section 2255 Proceedings (Rules of
Civil Procedure apply to section 2255 proceedings).
motion to vacate under § 2255 must be filed within one
year of the latest of four triggering events: (1) the date
the judgment of conviction becomes final; (2) the date on
which an impediment to making a motion that is created by the
government is removed; (3) the date the Supreme Court
initially recognizes a right that is made retroactively
applicable to cases on collateral review; or (4) the date on
which new facts are discovered through the exercise of due
diligence to support a claim. 28 U.S.C. §
conviction became final when the Supreme Court denied his
petition for writ of certiorari. See Clay v. United
States, 537 U.S. 522, 527 (2003). Petitioner's
§ 2255 motion was filed well-outside the filing period
provided by § 2255(f)(1) as it was filed more than three
years after his conviction became final. Petitioner does not
appear to rely on any other provision of § 2255(f) as he
has not identified any government impediment which has been
removed, he has not relied on a Supreme Court decision made
retroactively applicable on collateral review, nor has he
identified any new facts discovered through due diligence to
support his claim. His § 2255 petition is therefore
equitable tolling is available to toll the limitations period
in this context, see Holland v. Florida, 560 U.S.
631, 649 (2010), petitioner has identified no basis upon
which to invoke equitable tolling. The Court further notes
that petitioner has failed to state a plausible claim for
relief. The "Constitution does not deny the State and
Federal Governments the power to prosecute for the same
act", Rinaldi v. United States, 434 U.S. 22, 28
(1977) (per curiam), and the dual sovereignty exception would
apply such that petitioner's conviction in state and
federal court for the same conduct would not violate the
Double Jeopardy Clause of the Fifth Amendment. United
States v. Clark, 400 Fed.Appx. 722, 724 (4th Cir. 2010).
Accordingly, both petitioner's Fifth Amendment and
related Sixth Amendment ineffective assistance of counsel
claims would fail.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
As reasonable jurists would not find this Court's
dismissal of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
these reasons, petitioner has failed to state a claim upon
which relief could be granted and his § 2255 motion [DE
46] is properly DISMISSED. The government's motion to