Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. United States

United States District Court, E.D. North Carolina, Eastern Division

July 12, 2018

STEPHEN ANDREW ROSS Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Malcolm J. Howard Senior United States District Judge

         This matter is before the court on the government's motion to dismiss, [DE #67], petitioner's motion to vacate under 28 U.S.C. § 2255, [DE #63]. Petitioner has filed a response, [ DE #70], as well as a motion to appoint counsel, [DE #71], and this matter is ripe for adjudication.

         BACKGROUND

         On November 10, 2015, petitioner pled guilty pursuant to a written plea agreement to possession of a stolen firearm, in violation of 18 U.S.C. § 922 (j) (Count Two). [DE #47 at 5]. On March 9, 2016, the court sentenced petitioner to a total term of imprisonment of 46 months. [DE #59]. Petitioner did not appeal. On March 3, 2017, counsel for petitioner filed a motion to amend/correct judgment, [DE #60], which motion was denied on April 18, 2017.[1] [DE #61].

         On or about January 9, 2018, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, [DE #63], arguing ineffective assistance of counsel by 1) "fail[ing] to investigate or challenge evidence from an illegal search;" 2) "fail[ing] to investigate issues concerning jurisdiction and application for adoption or dual prosecution" by the federal government; 3) "fail[ing] to advise [petitioner] of legal standing on [sic] elements of each charged crime were unmet;" 4) "fail[ing] to properly file for a [Federal] Rule [of Criminal Procedure] 35(a) Amendment and did so intentionally and in bad faith; and 5) "fail[ing] to review the [presentence investigation report] with [petitioner] for any meaningful period of time." [DE #63 at 5 and #63-1 at 1].

         COURT'S DISCUSSION

         I. Motion to Appoint Counsel, [DE #71]

         Petitioner does not have a right to counsel in a § 2255 proceeding unless "necessary for effective discovery" or for an evidentiary hearing. See Rules Governing § 2255 Proceedings, Rules 6(a) and 8(c); see also 18 U.S.C. § 3006A(a)(2) (providing court may appoint counsel when "the interests of justice so require."). Finding Rules 6(a) and 8(c) are not implicated in the proceeding, and finding further that the interests of justice do not require appointment of counsel in this case, petitioner's motion, [DE #71], is DENIED.

         II. Motion to Vacate under 28 U.S.C. § 2255, [DE #63]

         A. Timeliness

         Title 28 U.S.C. § 2255 imposes a one-year statute of limitations on actions filed pursuant to that section. The pertinent text of 28 U.S.C. § 2255 provides that:

A 1-year limitation shall apply to a motion under this section. The limitation period shall run 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.