United States District Court, E.D. North Carolina, Western Division
MALCOLM J Y HOWARD, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on the government's motion to
dismiss petitioner's 28 U.S.C. § 2255 motion to
vacate. Petitioner has responded, and this matter is ripe for
October 6, 2014, Petitioner pled guilty, pursuant to a
written plea agreement, to conspiracy to distribute and
possess with the intent to distribute 1 kilogram or more of
heroin, in violation of 21 U.S.C. § 846 and
841(b)(1)(A). This court sentenced petitioner to a term of
imprisonment of 120 months on April 8, 2015. Judgment was
entered on the docket on April 8, 2015. Petitioner did not
appeal his conviction or sentence. Therefore, judgment became
final on "the date upon which [petitioner] declined to
pursue further direct appellate review." United
States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001).
Petitioner then filed the instant motion to vacate, at the
earliest, October 28, 2016.
28 U.S.C. § 2255 imposes a one-year statute of
limitations on actions filed pursuant to that section. The
pertinent text of 28 U.S.C. § 2255 provides that:
A 1 year limitation shall apply to a motion under this
section. The limitation period shall run from the latest of-
(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 diligence.
28 U.S.C. § 2255(f).
filed his § 2255 motion well more than a year after his
judgment became final. Therefore, his motion is untimely.
While the statute of limitations period for section 2255
motions is subject to equitable tolling, United States v.
Prescott, 221 F.3d 686, 688 (4th Cir. 2000), the court
finds no facts which would merit equitably tolling the
statute of limitations in this matter. An otherwise
time-barred petitioner is entitled to equitable tolling in
"those rare instances where - due to circumstances
external to the party's own conduct - it would be
unconscionable to enforce the limitation against the
party." Hill v. Braxton, 277 F.3d 701, 704 (4th
Cir. 2002) (citing Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000)). In order for equitable tolling to
apply, petitioner must demonstrate that (1) he has been
pursuing his rights diligently, and (2) extraordinary
circumstances stood in his way and prevented him from timely
filing. Holland v. Florida, 130 S.Ct. 2549, 2562
(2010); United States v. Sosa, 364 F.3d 507, 512
(4th Cir. 2004). The reasons cited by petitioner, including
that he was kept in special housing for eleven months, do not
rise to the level of extraordinary circumstances or show that
petitioner pursued his rights diligently, as required in
order to apply equitable tolling. Furthermore, the court
notes petitioner filed several documents with the court
during the time the statute was running, showing he could
have filed his § 2255 motion if he desired. Therefore,
the court declines to apply the doctrine and finds the
the court notes petitioner has also filed a motion for return
of property. Finding his § 2255 motion untimely, ...