United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District 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), that he has filed through
counsel. The Court ordered Petitioner to file a response
demonstrating why the § 2255 Motion to Vacate is timely
and cautioned him that failure to do so would probably result
in dismissal with prejudice. (Doc. No. 2). Petitioner filed a
Response addressing limitations. (Doc. No. 3).
found Petitioner guilty in the underlying criminal case to
conspiracy to possess with intent to distribute a Schedule II
controlled substance. (5:03-cr-20, Doc. No. 290). He failed
to appear for his trial, which was separately charged in case
number 5:08-cr-07, and to which he pled guilty. On April 14,
2015, the Court entered its judgment sentencing Petitioner to
330 months' imprisonment for the drug offense and 30
months' imprisonment for failure to appear, running
consecutively. (5:03-cr-20, Doc. No. 351). Defense counsel
stated at the sentencing hearing that he would be filing a
notice of appeal on Petitioner's behalf. (5:03-cr-20,
Doc. No. 381 at 72). However, no appeal was filed.
filed the instant § 2255 Motion to Vacate through
counsel on April 23, 2018. He argues that he should be
granted a belated appeal because counsel told him he would
file an appeal on his behalf but failed to do so. Petitioner
alleges that he sent several letters after sentencing, to
which he received no response, and he never saw counsel again
after sentencing. Petitioner admits that the instant §
2255 Motion to Vacate was filed outside of the applicable
one-year statute of limitations. However, he argues that the
Court is not barred from granting relief because the reentry
of a judgment is a judicial, rather than a statutory, remedy.
In his Response addressing limitations, Petitioner reiterates
his arguments and asserts that the Court should not address
limitations without first ordering the Government to respond,
which would provide it with the opportunity to waive the
statute of limitations defense.
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
exercise of due diligence.
28 U.S.C. § 2255(f).
otherwise time-barred petitioner is entitled to equitable
tolling in “those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation against the
party.” Hill v. Braxton, 277 F.3d 701, 704
(4th Cir. 2002) (citing Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000)); United States v. Prescott, 221 F.3d 686, 688
(4th Cir. 2000)(“§ 2255's
limitation period is subject to equitable modifications such
as tolling.”). In order for equitable tolling to apply,
petitioner must demonstrate that (1) he has been pursuing his
rights diligently, and (2) ...