United States District Court, E.D. North Carolina, Western Division
GEOFFREY K. MONTAGUE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. The government, in response, has moved to
dismiss the motion to vacate. For the reasons that follow,
the government's motion to dismiss is granted.
Montague, was sentenced by the Court to a term of sixty
months' imprisonment following his plea of guilty to
charges of conspiracy to commit offenses against the United
States in violation of 18 U.S.C. § 371 and bribery in
violation of 18 U.S.C. § 201(b)(2). [DE 31]. Montague
was further ordered to make restitution in the amount of $7,
499, 200.00 to the United States Department of Defense
jointly and severally along with Christopher Ciampa, No.
5:14-CR-197-BO; Enmanuel Lugo, No. 5:14-CR-251-BO; and
Jeffrey Edmondson, No. 5:15-CR-118-BO. Id.
did not file a direct appeal of his conviction or sentence.
In July 2017, Montague filed a motion for specific
performance of the clear language of his plea agreement. [DE
55]. Montague argues that the government had breached his
plea agreement by failing to present information about his
cooperation at sentencing and by failing to request an
appropriate reduction in the advisory Guidelines range. By
order entered November 1, 2017, the Court notified Montague
of its intent to construe his motion for specific performance
as a motion pursuant to 28 U.S.C. § 2255. [DE 60]. On
November 29, 2017, Montague filed the instant motion to
vacate. [DE 61]. In his § 2255 motion, Montague raises
three grounds for relief: first, that the government failed
to file a motion pursuant to U.S.S.G. § 5K1.1; second,
that the restitution judgment was imposed jointly and
severally as between Montague and his co-defendants, but the
restitution amounts ordered in Montague's
co-defendants' cases are different from the amount of
restitution ordered in Montague's case; and finally that
the two-level enhancement for multiple bribes was not
appropriately applied. Because Montague in response to the
Court's order filed a separate motion under § 2255,
the Court will consider the arguments raised in the motion
for specific performance as additional grounds for relief
under § 2255.
government contends that the Court should dismiss
Montague's § 2255 motion pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim on
which relief can be granted. "To survive a motion to
dismiss pursuant to Rule 12(b)(6), [a petitioner's] '
[f]actual allegations must be enough to raise a right to
relief above the speculative level, ' thereby
'nudg[ing] their claims across the line from conceivable
to plausible.'" Aziz v. Alcolac Inc., 658
F.3d 388, 391 (4th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). "Under §
2255(b), [u]nless the motion and files and records of the
case conclusively show that the prisoner is entitled to no
relief, the court must grant a prompt hearing to determine
the issues and make findings of fact and conclusions of law
with respect thereto." United States v. Thomas,
627 F.3d 534, 539 (4th Cir. 2010) (internal quotation and
motion under 28 U.S.C. § 2255 must be filed within one
year of the latest of four triggering events: (1) the date
the judgment of conviction becomes final; (2) the date on
which an impediment to making a motion that is created by the
government is removed; (3) the date the Supreme Court
initially recognizes a right that is made retroactively
applicable to cases on collateral review; or (4) the date on
which new facts are discovered through the exercise of due
diligence to support a claim. 28 U.S.C. §
2255(f)(1)-(4). Because he did not file a direct appeal,
Montague's conviction became final on the date of entry
of his judgment of conviction or, at the latest, when the
time for noticing a direct appeal expired fourteen days from
the date of entry of judgment. See United States v.
Sanders, 247 F.3d 139, 142 (4th Cir. 2001); United
States v. Brown, 596 Fed.Appx. 209, 211 (4th Cir. 2015)
(unpublished) (applying Sanders); see also United States
v. Diallo, 581 Fed.Appx. 226, 227 (4th Cir.
2014)(unpublished) (holding that limitations period begins
when the time for filing direct appeal has expired) (citing
Clay v. United States, 537 U.S. 522, 525 (2003));
Hannigan v. United States, 131 F.Supp.3d 480, 484
n.l (E.D. N.C. 2015) (recognizing that the Fourth Circuit has
not overruled Sanders and discussing application of
Clay). Judgement was filed on September 29, 2015,
and was entered on the Court's docket on October 2, 2015.
Montague's § 2255 motion, which was filed at the
earliest on July 17, 2017, was filed well-outside the
one-year limitations period in § 2255(f)(1). Montague
has failed to demonstrate that his motion is timely under any
of the remaining provisions of 28 U.S.C. § 2255(f).
Montague has not demonstrated that equitable tolling of the
limitations period should apply. See Holland v.
Florida, 560 U.S. 631, 649 (2010) (equitable tolling of
limitations period available where petitioner demonstrates he
has been pursuing his rights diligently and some
extraordinary circumstance prevented him from timely filing
his petition). Although Montague argues that his § 2255
motion should not be deemed untimely as it was the Court
which, pursuant to Castro v. United States, 540 U.S.
375 (2003), converted his motion to one which is subject to
timeliness limitations, the Court would note that its notice
to Montague expressly advised him of the limits placed on
motions under § 2255. Equitable tolling of the one-year
period of limitations governing § 2255 petitions is
available only in " those rare instances where - due to
circumstances external to the party's own conduct - it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result."
Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008)
(citation omitted). The Court has been presented with no
basis to conclude that it would be unconscionable to enforce
the limitations period in this case. Therefore, because
Montague did not file his § 2255 motion within the
limitations period and equitable tolling does not apply, it
must be dismissed as untimely.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
foregoing reasons, the government's motion to dismiss [DE
65] is GRANTED and petitioner's motion to vacate [DE 61]
and motion for specific performance [DE 55] are ...