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Grier v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 8, 2018

CEDARIAN GRIER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn Jr. Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         Petitioner pled guilty in the underlying criminal case to a single count of possession of a firearm by a felon. (3:12-cr-357, Doc. No. 24, 25). The Court sentenced him to 120 months' imprisonment on July 1, 2014, after finding he is not subject to the Armed Career Criminal Act (“ACCA”) and its mandatory 180-month sentence. However, on July 9, 2014, the Court struck the July 1, 2014, sentence on its own motion and set the case for resentencing. (3:12-cr-357, Doc. No. 37). On August 13, 2014, the Court sentenced Petitioner to 180 months under ACCA. (3:12-cr-357, Doc. No. 41). Petitioner appealed, arguing that the Court lacked jurisdiction to resentence him. The United States agreed and the parties filed a joint motion to remand for resentencing which the Fourth Circuit granted, case number 14-4837.

         On remand, the Court sentenced Petitioner to 120 months' imprisonment. (3:12-cr-357, Doc. No. 71). Defense counsel filed a memorandum brief on the resentencing appeal and Petitioner presented arguments on his own behalf. The United States moved to dismiss the appeal because it was barred by the appellate waiver contained in his plea agreement. The Fourth Circuit agreed and dismissed the appeal on May 26, 2016, case number 15-4438. (3:12-cr-357, Doc. No. 83). Petitioner filed a letter in the Fourth Circuit inquiring about filing a certiorari petition on June 28, 2016, and, on July 5, the Fourth circuit returned the pleading to Petitioner along with instructions to file a certiorari petition directly with the United States Supreme Court.

         Petitioner filed the instant § 2255 Motion to Vacate on September 27, 2017. (Doc. No. 1). He argues that counsel was ineffective for: (1) failing to object to the calculation of his criminal history points; and (2) failing to object to the calculation of his base offense level. In support of timeliness, he states: “My sentence became final after I was denied on my petition for writ of certiorari on Oct. 2016.” (Doc. No. 1 at 10).

         II. STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         A one-year statute of limitation applies to motions to vacate under § 2255, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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 ...

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