United States District Court, E.D. North Carolina, Western Division
MARVIN G. ROLAND, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Malcolm J. Howard Senior United States District Judge.
matter is before the court on the government's motion to
dismiss, [DE #73], petitioner's motion to vacate pursuant
to 28 U.S.C. § 2255, [DE #69]. Petitioner has filed a
response [DE #178], and these matters are ripe for
adjudication. Former President Obama issued an Executive
Order of Clemency on January 17, 2017, which commuted
petitioner's sentence to May 19, 2017, leaving intact the
court's imposition of supervised release.
February 25, 1999, petitioner pled guilty, pursuant to a
written plea agreement, to two counts of an indictment
charging him with conspiracy to distribute and possess with
intent to distribute a Schedule II controlled substance in
violation of 21 U.S.C. § 841(a) (1) and § 846
(Count One) and using and carrying a firearm during and in
relation to a drug trafficking crime, and aiding and abetting
the same, in violation of 18 U.S.C. § 924(c)(1) and
§ 2 (Count Three). [DE #35 at 4-5]. On July 12, 1999, the
court sentenced petitioner to a term of imprisonment of 322
months. [DE #50 at 2]. Petitioner did not appeal.
than fifteen years later, on July 8, 2016, petitioner filed
the instant motion to vacate pursuant to 28 U.S.C. §
2255 [DE #69], claiming the court erred when it classified
him as a career offender under USSG § 4B1.1 for Florida
drug convictions which he contends were not controlled
substance offenses based upon recent Supreme Court decisions
in Descamps v. United States, 570 U.S. 254 (2013)
and Mathis v. United States, 136 S.Ct. 2243 (2016) .
[DE #69-1 at 3] .
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 period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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).
28 U.S.C. § 2255 motion was not filed within one year of
the entry of judgment. Petitioner contends his motion is
timely under 28 U.S.C. § 2255(f)(3). [DE #69-1 at 1].
However, neither Descamps nor Mathis
recognize the right asserted by petitioner, but rather
address the way in which certain prior convictions qualify as
violent felonies under the Armed Career Criminal Act
("ACCA"). Petitioner is not disputing the
designation of prior convictions as violent felonies under
the ACCA, but rather the designation of prior convictions as
controlled substance offenses under the United States