United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge.
December 28, 2015, David Lee Jenkins, Jr.,
("Jenkins") moved under 28 U.S.C. § 2255 to
vacate, set aside, or correct his 168-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. 56] 4, 11-13; [D.E. 56-2]. This court held
the motion in abeyance pending the Supreme Court's
decision in Beckles v. United States. 137 S.Ct. 886
(2017). On August 23, 2017, in light ofBeckles. the
government moved to dismiss Jenkins's motion for failure
to state a claim upon which relief can be granted [D.E. 67].
As explained below, the court grants the government's
motion to dismiss and dismisses Jenkins's section 2255
August 10, 2012, pursuant to a written plea agreement,
Jenkins pleaded guilty to possession with intent to
distribute a quantity of cocaine (count one) and possession
of a firearm in furtherance of a drug-trafficking crime
(count two). See [D.E. 35, 63]. On December 5, 2012, at
Jenkins's sentencing hearing, the court found that
Jenkins was a career offender, [D.E. 39] ¶ 27, and
calculated Jenkins's advisory guideline range to be 262
to 327 months' imprisonment based on a total offense
level of 29 and criminal history category of VI. See [D.E.
45] 1. After granting the government's motion under
U.S.S.G. § 5K1.1 [D.E. 42] and considering all relevant
factors under 18U.S.C. § 3553(a), the court sentenced
Jenkins to 168 months' imprisonment on each count to run
concurrently. See [D.E. 44, 45]. Jenkins 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 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).
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 2255's statute of limitations when the
fourteen-day appeal period expires. See Clay v. United
States. 537 U.S. 522, 532 (2003). But cf. 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
December 5, 2012, the court entered Jenkins's judgment of
conviction [D.E. 44]. Therefore, under Clay, his
judgment became final on December 19, 2012, and his period
within which to file a section 2255 motion ended on December
19, 2013. See, e.g.. Clay, 537
U.S. at 532. Jenkins, however, did not file his section 2255
motion until December 28, 2015. See [D.E. 56]. Thus,
Jenkins's section 2255 motion is untimely under section
2255(f). Furthermore, Jenkins 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, Jenkins's section
2255 motion is untimely under section 2255(f).
Jenkins may not bring bis 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. 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 claim fails.
Jenkins's plea agreement contains an appellate waiver.