United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
matter comes before the court on petitioner's motions to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (DE 187, 194), motion for extension of
time to file a § 2255 petition (DE 185), motion for a
new trial pursuant to Federal Rule of Criminal Procedure 33
(DE 189), and motions to amend (DE 195, 203). Also before the
court is respondent's motion to dismiss (DE 196) pursuant
to Federal Rule of Civil Procedure 12(b)(6).
30, 2014, petitioner was found guilty, following a jury trial
before Judge James C. Fox, of several charges related to a
drug conspiracy and money laundering conspiracy. On July 15,
2015, petitioner was sentenced to life imprisonment.
Petitioner subsequently appealed, and the United States Court
of Appeals for the Fourth Circuit affirmed petitioner's
conviction and sentence. See United States v.
Pressley, 654 Fed.Appx. 591 (4th Cir. 2016).
3, 2017, petitioner filed a motion for an extension of time
to file a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. On July 10, 2017,
this action was re-assigned to the undersigned for all
further proceedings. Then, on July 24, 2017,  petitioner filed
his § 2255 petition. On August 2, 2017, petitioner filed
a motion for a new trial pursuant to Federal Rule of Criminal
Procedure 33, which was fully briefed. On September 5, 2017,
petitioner filed a second § 2255 motion, which was
nearly identical to petitioner's original § 2255
motion. On the same date, petitioner filed a motion to amend
his § 2255 motion to include several new claims.
September 18, 2017, respondent filed a motion to dismiss the
claims petitioner raised in his original § 2255 motion
pursuant to Rule 12(b)(6), arguing that petitioner failed to
state a claim upon which relief may be granted. Petitioner
responded to the motion to dismiss, and then moved to again
amend his § 2255 motion to include several new claims.
court begins with petitioner's motion for a new trial
pursuant to Rule 33. Petitioner asserts that he is entitled
to a new trial pursuant to Rule 33 because he received
ineffective assistance of counsel. In particular, petitioner
states that his counsel failed to interview witnesses
identified by petitioner as possessing relevant information.
allows a district court to "vacate any judgment and
grant a new trial if the interest of justice so
requires." Fed. R. Crim. P. 33 (a). The rule further
provides that a motion for a new trial based on newly
discovered evidence must be filed within three years of the
finding of guilt, and a motion for a new trial, based on any
reason other than newly discovered evidence, must be filed
within fourteen days of the finding of guilt. Id.
33(b)(1), (b)(2). "[I]nformation supporting an
ineffective assistance claim is not evidence within the
meaning of Rule 33." United States v. Smith, 62
F.3d 641, 650 (4th Cir. 1990) (internal quotation omitted).
Accordingly, such claim must be filed within 14 days of the
guilty verdict. United States v. Gooding, 594
Fed.Appx. 123, 127 n. 4 (4th Cir. 2014) (internal quotation
and citation omitted)). Because petitioner's Rule 33
motion was filed well after the fourteen-day period following
petitioner's guilty verdict, the court DENIES
petitioner's motion as untimely.
court next turns to petitioner's motion for an extension
of time to file his § 2255 motion. Nothing in the text
of text of § 2255 or relevant case law permits this
court to extend the one-year statute of limitations which
applies to all § 2255 motions. See United States v.
Hyde, No. 1:16CR00001-007, 2017 WL 4684191, at *1 (W.D.
Va. Oct. 18, 2017) ("The court has no power to extend
the time to file a motion under § 2255."). Thus,
petitioner's motion to extend the deadline for filing his
§ 2255 motion is DENIED.
the court addresses petitioner's two motions to amend his
§ 2255 petition in which he seeks to supplement his
claims. For good cause shown, petitioner's motions are
GRANTED. See Fed.R.Civ.P. 15(a). Because the court
has granted petitioner's motions to amend and because
respondent's motion to dismiss does not address
petitioner's newly added claims, the court DENIES as MOOT
respondent's pending motion to dismiss.
summary, the court ORDERS as follows:
(1) Petitioner's motion for an extension of time to file
a § 2255 motion ...