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Battle v. United States

United States District Court, E.D. North Carolina, Eastern Division

November 8, 2017

TONYA MARIE BATTLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255, as corrected and amended. (DE 51, 57). Also before the court is the government's motion to dismiss. (DE 64). The issues raised are ripe for ruling.[1] For the reasons that follow, the court dismisses petitioner's first, third, fourth, and fifth claims for relief and refers the remaining claim to magistrate judge for evidentiary hearing.

         BACKGROUND

         On August 13, 2015, pursuant to a written plea agreement, petitioner pleaded guilty to conspiracy to defraud the United States on claims, in violation of 18 U.S.C. § 286 (count 1), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (count 35). As part of her plea agreement, petitioner agreed to waive the right to challenge her conviction or sentence on collateral review with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct not known at the time of petitioner's guilty plea. (Plea Agreement (DE 22) at 1-2). At sentencing on February 17, 2016, the government requested a 25 percent reduction from the advisory guideline range as to count 1, requesting a sentence of 42 months on count 1 and 24 months on count 35, to be served consecutively. (Sentencing (DE 49) at 17). The court stated it was “going to honor the Government's motion to depart downward, ” but sentenced petitioner to a total of 90 months imprisonment.[2] (Id. at 19-20). Petitioner did not appeal her judgment.

         On March 20, 2017, petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255, 1) challenging the constitutionality of her enhanced sentence based on the amount of money stolen. On May 23, 2017, petitioner filed her corrected motion to vacate, arguing ineffective assistance of counsel in that her counsel 2) failed to file a timely notice of appeal and falsely represented to petitioner and her family that such an appeal had been filed; 3) failed to object to ambiguity in petitioner's sentence; 4) failed to object to the amount of money calculated as having been lost as a result of petitioner's offense and failed to investigate the actual amount lost; and 5) failed to question how the court calculated the terms of supervised release. On July 3, 2017, the government filed its motion to dismiss petitioner's § 2255 motion, arguing 1) petitioner's motion should be dismissed for being untimely or 2) petitioner's first, third, fourth, and fifth claims should be dismissed for failure to state a claim upon which relief can be granted.[3]

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). “An evidentiary hearing in open court is required when a movant presents a colorable . . . claim showing disputed facts beyond the record or when a credibility determination is necessary in order to resolve the issue.” United States v. Ray, 547 Fed.Appx. 343, 345 (4th Cir. 2013) (citing United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir.2000)).

         B. Analysis

         1. Timeliness of Claims

         A one-year period of limitations applies to § 2255 motions. See 28 U.S.C. § 2255(f). The limitation period shall be measured from the latest of:

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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 ...

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