United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. Judge
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).
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.
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.
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).
STANDARD OF REVIEW
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).
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
(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