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Whitfield v. United States

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

April 10, 2018

Timothy Jerome Whitfield, Petitioner,
v.
United States of America, Respondent.

          MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.

         Petitioner Timothy Jerome Whitfield, proceeding under 28 U.S.C. § 2255, seeks to vacate the 21-month sentence of imprisonment imposed in connection with his guilty plea to conspiracy to distribute and possess with the intent to distribute a quantity of cocaine and cocaine base, and the 60-month sentence of imprisonment imposed in connection with his guilty plea to possession of a firearm in furtherance of a drug trafficking crime. Mot. to Vacate. D.E. 52. Whitfield argues that he is entitled to relief because his attorney was ineffective by giving him inaccurate information which led to his guilty plea, and by allowing the Government to breach the plea agreement. The Government argues that the statute of limitations bars Whitfield's claim.

         After reviewing the docket and the arguments of the parties, it appears that Whitfield is not entitled to the relief he seeks because he filed his claim after the passage of the statute of limitations, and the circumstances do not warrant equitable tolling. Therefore, the undersigned recommends[1] that that the court deny Whitfield's Motion to Vacate (D.E. 52) and grant the Government's Motion to Dismiss (D.E. 54).

         I. Background

         In May 2016, Whitfield entered a guilty plea, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute a quantity of cocaine and cocaine base, and to possession of a firearm in furtherance of a drug trafficking crime. As a result of his guilty plea, the court entered a judgment on August 5, 2016, requiring him to serve a 21-month prison sentence for the cocaine charge and a 60-month prison sentence for the firearm charge. Whitfield did not appeal his conviction or sentence. On January 3, 2018, Whitfield filed his Motion to Vacate and the Government responded by filing a Motion to Dismiss.

         II. Analysis

         Because Whitfield filed his motion after the statute of limitations passed and because no extraordinary circumstances justify his delay, the undersigned recommends that the court grant the Government's motion to dismiss.

         A. Legal Standard

         In order to prevail on his Motion to Vacate, Whitfield must show that (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose such sentence; or (3) that his sentence exceeded the maximum authorized by law. 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” regarding the petitioner's motion.” Id. § 2255(b). Ultimately, the petitioner must establish that he is entitled to relief by a preponderance of the evidence. See, e.g., Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).

         The Federal Rules of Civil Procedure are applicable to the court's consideration of a § 2255 motion to the extent that they do not conflict with any other statutory provisions or the procedural rules specifically applicable to § 2255 motions. Rules Governing § 2255 Proceedings, Rule 12. Therefore, in reviewing the Government's Motion to Dismiss, the court will apply the standard that generally applies to motions brought pursuant to Rule 12(b)(6).

         The Supreme Court has explained that in order to withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Therefore, while a court must accept all the factual allegations contained in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. The court may also consider documents that are part of the public record, Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion, “the files and records of the case[, ]” 28 U.S.C. § 2255(b).

         After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory in nature or nothing more than a formulaic recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -but it has not ‘shown'-‘that the pleader is entitled to relief'” Id. If a party fails to show that he is entitled to relief, the court must dismiss the deficient claims.

         B. Analysis

         1. Statute of ...


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