United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge
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.
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. [CR Doc. 35: Judgment].
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.
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].
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].
STANDARD OF REVIEW
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).
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
(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