United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
pro se “Motion Pursuant to Title 28, United
States Code, Section 2255.” (Doc. 1).
was indicted in the underlying criminal case for a single
count of conspiracy to commit wire fraud. (3:16-cr-326, Doc.
No. 11). He pled guilty pursuant to a written plea agreement.
Petitioner specifically acknowledged in the written agreement
that he is aware of the statutory maximum sentence for the
offense of 20 years' imprisonment, that the Court has not
yet determined the sentence, that any prediction is not
binding on the Court, that the Court has final discretion to
impose any sentence up to the statutory maximum, and that
Petitioner will not be permitted to withdraw his plea as a
result of the sentence imposed. (Id., Doc. No. 32 at
1-2). The plea agreement provides that the parties would
jointly recommend findings of a loss amount in excess of $9,
500, 000 but less than $25, 000, 000, a 20-level enhancement
for the loss amount, a two-level enhancement for
sophisticated means, and a four-level enhancement for role as
organizer or leader. (Id., Doc. No. 32 at 2). The
agreement provides that either party may seek a departure or
variance and that the United States will inform the Court and
probation office of all facts pertinent to the sentencing
process. (Id., Doc. No. 32 at 2-3). Petitioner
expressly waived his right to contest the conviction and/or
sentence on direct appeal or post-conviction motion except
for claims of ineffective assistance of counsel or
prosecutorial misconduct. (Id., Doc. No. 32). The
Court accepted the plea. (Id., Doc. No. 34).
calculated the base offense level as seven for a violation of
18 U.S.C. § 1343. (Id., Doc. No. 46 ¶ 33).
A total of 25 levels were added for specific offense
characteristics, i.e., 20 levels for a loss amount
more than $9, 500, 000, two levels because the offense
included 10 or more victims, and two levels because the
offense involved sophisticated means. (Id., Doc. No.
46 at ¶¶ 34-36). Four levels were added because
Petitioner was an organizer or leader of a criminal activity
involving five or more participants. (Id., Doc. No.
46 at ¶ 38). Three levels were deducted for acceptance
of responsibility, resulting in a total offense level of 32.
(Id., Doc. No. 46 at ¶¶ 42-44). Petitioner
had no criminal history points and a criminal history
category of I. (Id., Doc. No. 46 at ¶¶
48-49). The resulting advisory guidelines range was 121 to
151 months' imprisonment. (Id., Doc. No. 46 at
Court adopted the PSR without change and granted the
Government's motion for a downward departure.
See (Id., Doc. No. 66). In a judgment
docketed on August 14, 2017, the Court sentenced Petitioner
to 87 months' imprisonment and ordered over $16 million
in restitution. (Id., Doc. No. 65). Petitioner did
filed the instant § 2255 Motion to Vacate on February 4,
2019. (Doc. No. 1 at 11). He contends that his petition is
timely pursuant to § 2255(f)(4) which provides that the
one-year period of limitation that applies to this section
runs from, inter alia, “the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”
He states that his § 2255 Motion to Vacate is timely
because he “entered into a plea agreement with the
Government, based on a promise that he will receive a lower
sentence on the advice of his attorney … if [he]
provided assistance to the Government.” (Doc. No. 1 at
4). Petitioner raises three claims for § 2255 relief:
(1) counsel was ineffective for failing to file a notice of
appeal pursuant to Petitioner's timely request; (2)
counsel was ineffective for failing to challenge or object to
Petitioner's eight-level sentencing enhancement pursuant
to Alleyne v. United States, 570 U.S. 99 (2013); and
(3) counsel was ineffective for failing to advise Petitioner
on the merits of appealing his sentence.
§ 2255 Motion to Vacate is insufficient to proceed. It
is not on the § 2255 form, it has not been signed under
penalty of perjury, and Petitioner fails to allege facts to
support his contention that the § 2255 Motion to Vacate
is timely filed within one year of the date when the facts
supporting the claims could have been discovered through the
use of due diligence. See Rules Governing Section
2255 Proceedings for the United States District Courts, Rule
2(b)(1)-(3), (5); 28 U.S.C. § 2255(f)(4). Plaintiff
shall have thirty (30) days in which to file
a superseding Amended § 2255 Motion to Vacate in
accordance with this Order.
Petitioner is appearing pro se, he is required to
comply with the Local Rules of the United States District
Court for the Western District of North Carolina, the Federal
Rules of Civil Procedure, and the Rules Governing Section
2255 Proceedings. See Rule 12, Rules Governing
Section 2255 Proceedings for the United States District
Courts (“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 these
rules, may be applied to a proceeding under these
rules.”). Rule 8(a) of the Federal Rules of Civil
Procedure requires pleadings to contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief….” Fed.R.Civ.P. 8(a)(2); Rule
2(c), Rules Governing Section 2255 Proceedings for the United
States District Courts (the § 2255 motion to vacate must
“substantially follow … the form appended to
these rules.”); see generally LCvR 1.7(d) (the
page limit for any civil brief is 25-pages with a 12-point
font size, double-spaced). The Amended § 2255 Motion to
Vacate will supersede and replace the original § 2255
Motion to Vacate so that any claims not included in the
Amended § 2255 Motion to Vacate will be waived. See
Young v. City of Mount Ranier, 238 F.3d 567, 573
(4th Cir. 2001). The Amended § 2255 Motion to
Vacate will be subject to all applicable timeliness and
procedural requirements. See generally 28 U.S.C.
§ 2255(f), (h); Mayle v. Felix, 545 U.S. 644
(2005) (discussing relation back).
to comply with this Order will probably result in dismissal
of this case as time-barred.
IS, THEREFORE, ORDERED that:
Petitioner shall have thirty (30) days in
which to file an Amended § 2255 Motion to Vacate in
accordance with this Order. If Petitioner fails to file an
Amend § 2255 Motion to Vacate within the time limit set