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Surratt v. United States

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

May 22, 2018

CEDRIC LLAWENLLYN SURRATT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion under 28, United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Doc. 1] and his “Amended Pleading” [Doc. 2]. For the reasons that follow, the Court concludes that the petition must be dismissed as untimely.

         I. PROCEDURAL HISTORY

         On January 8, 2013, Petitioner was found guilty after a jury trial of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 1:12-cr-00055-MR-DLH-1 (“CR”), Doc. 26: Jury Verdict]. Judgment was entered on December 12, 2013.[1] [CR Doc. 35: Judgment].

         On November 26, 2013, this Court sentenced Petitioner to 100 months' imprisonment. Petitioner appealed, and on September 29, 2014, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. [CR Doc. 46].

         On January 22, 2018, Petitioner filed a “Motion for Leave to File Out-of-Time Motion Pursuant to 28 U.S.C. § 2255.” [CR Doc. 49]. On January 24, 2018, this Court denied the motion, noting that the Court was without authority to grant him leave to file an untimely motion to vacate. [CR Doc. 50]. In this Order, the Court advised Petitioner that if he “chooses to file a motion under § 2255, it will be incumbent upon him to demonstrate that such motion is timely under § 2255(f).” [Id. at 2].

         Petitioner placed the instant petition in the prison mailing system on March 19, 2018, and it was stamp-filed in this Court on March 21, 2018. [Doc. 1]. Petitioner then filed an “Amended Motion to Vacate” on April 13, 2018. [Doc. 2].

         II. STANDARD OF REVIEW

         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings” in order to determine whether a petitioner is entitled to any relief. After having considered the record in this matter, the Court finds that no response is necessary from the United States. Further, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period 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 ...

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