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Hardy v. United States

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

November 8, 2017

PHILLIP HARDY, 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 65, 67), petitioner's motion to remand (DE 79), and petitioner's motion to dismiss (DE 81). Also before the court is the government's motion to dismiss. (DE 73). The issues raised are ripe for ruling.[1] For the reasons that follow, this court denies petitioner's motions and grants the government's motion to dismiss.

         BACKGROUND

         On July 14, 2014, pursuant to a written plea agreement, petitioner pleaded guilty to conspiracy to distribute and possess with the intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (count one); and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (count seven). On January 27, 2015, the court sentenced petitioner to a total of 180 months imprisonment.[2] Petitioner did not appeal his judgment.

         On June 26, 2016, petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255, arguing: 1) there was insufficient evidence to support his conviction for using or carrying a firearm in furtherance of a drug trafficking offense (count two); 2) there was insufficient evidence to support the mandatory minimum sentence associated with his conviction for conspiracy to distribute heroin (count one); 3) the court lacked subject matter jurisdiction over petitioner's case; and 4) his trial counsel provided ineffective assistance of counsel. On May 1, 2017, the government filed its motion to dismiss petitioner's § 2255 motion, arguing that petitioner's motion is untimely. On May 31, 2017, petitioner filed the instant motion to remand. On July 13, 2017, petitioner filed the instant motion to dismiss.

         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).

         B. Analysis

         Petitioner's motion to vacate is untimely, and therefore, it must be dismissed. 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 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 ...

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