United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, (DE 55), and the government's motion to
dismiss. (DE 61). Pursuant to 28 U.S.C. § 636(b)(1)(B),
United States Magistrate Judge Kimberly A. Swank, entered a
memorandum and recommendation (“M&R”), (DE
65), wherein it is recommended that the court deny
petitioner's motion and grant respondent's motion.
Petitioner filed objections to the M&R, and in this
posture, the issues raised are ripe for ruling. For the
reasons that follow, the court adopts the recommendation of
the M&R, denies petitioner's motion, and grants
pled guilty, pursuant to a written plea agreement, to two
counts of distribution of a quantity of cocaine in violation
of 21 U.S.C. § 841(a)(1). The court sentenced petitioner
on September 11, 2012, to two concurrent terms of 151
months' imprisonment. Petitioner did not appeal. On
October 30, 2017, petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255, asserting that his
counsel was ineffective in advising him to plead guilty where
he was held liable for “drug transactions manufactured
by state law enforcement agents.” (Mot. (DE 55) at 12).
The government moves to dismiss on the basis of untimeliness,
and the magistrate judge recommends dismissal on that basis.
Standard of Review
district court reviews de novo those portions of the M&R
to which specific objections are filed. 28 U.S.C. §
636(b). The court does not perform a de novo review where a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or 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.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b). “The Federal
Rules of Civil Procedure and the Federal Rules of Criminal
Procedure, to the extent that they are not inconsistent with
any statutory provisions, or the [§ 2255 Rules], may be
applied to” § 2255 proceedings. Rules Governing
Section 2255 Proceedings, Rule 12.
motion is time barred because it was filed well outside of
the one-year period of limitations required for § 2255
claims. See 28 U.S.C. § 2255(f). Although
petitioner suggests that the limitations period should be
equitably tolled, he has not demonstrated that “due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.”
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
argues that the limitations period should be tolled due to
his “actual innocence.” (Obj. (DE 66) at 1-2).
However, the basis for petitioner's claim is an error by
counsel in failing to advise petitioner “about the
federalism associated with the offense charged” and
inapplicability of North Carolina drug laws. (Mot. (DE 55) at
12). A “lawyer's mistake in interpreting a
statutory provision” will not constitute the requisite
“‘extraordinary circumstance” external to
[petitioner] that would justify equitable tolling.”
Harris, 209 F.3d at 330. Moreover, “[i]t is
important to note in this regard that ‘actual
innocence' means factual innocence, not mere legal
insufficiency, ” and petitioner has not met this
standard here. Bousley v. United States, 523 U.S.
petitioner's motion must be denied as time-barred.
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
must demonstrate that reasonable jurists could debate whether
the issues presented should have been decided differently or
that they are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
After reviewing the claims ...