United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court for an initial screening
of Petitioner's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody. [Doc. 1].
pled guilty on December 16, 2015, to possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1).
[Crim. No. 1:15-cr-44-MR-WCM-1 (“CR”), Doc. 50:
Judgment, Doc. 29: Acceptance and Entry of Guilty Plea]. On
June 28, 2016, this Court sentenced Petitioner to 40
months' imprisonment. [CR Doc. 50]. Judgment was entered
on July 7, 2016, and Petitioner did not appeal.
[Id.]. Petitioner's conviction, therefore,
became final fourteen days later for purposes of Section
2255(f) when the time for filing a notice of appeal expired.
See United States v. Clay, 537 U.S. 522, 524-25
(2003) (when a defendant does not appeal, his conviction
becomes final when the opportunity to appeal expires); Fed.
R. App. P. 4(b)(1)(A).
placed his Section 2255 motion to vacate in the prison system
for filing on February 25, 2019, and it was stamp-filed in
this Court on March 1, 2019.
brings three claims in his motion to vacate: (1) a claim that
his sentence computation is incorrect, as he should have been
given credit for time served based on his imprisonment in a
county jail for 16 months while on a federal detainer; (2) a
claim that he received ineffective assistance of counsel; and
(3) a claim that this Court should have held that
Petitioner's state sentence was to run concurrently to
his federal sentence. [Doc. 1 at 4, 5, 7, 8].
as to Petitioner's sentence computation claim, a motion
asking the district court to direct the Bureau of Prisons to
award a prisoner jail credit addresses the computation and
execution of the sentence, rather than the sentence itself,
and must be brought under § 2241 in the district of
confinement. See, e.g., United States v.
Miller, 871 F.2d 488, 490 (4th Cir.1989); Brown v.
United States, No. 5:11cv155-V-2, 2011 WL 6000547 (W.D.
N.C. Nov. 30, 2011). Therefore, this claim must be brought,
if at all, in a § 2241 petition filed in the U.S.
District Court in the district where Petitioner is confined.
Petitioner's claim that his federal sentence should have
run concurrently to his state sentence, the Court finds that
this claim has been procedurally defaulted as Petitioner
failed to raise this on direct appeal. See Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir.1996).
Furthermore, Petitioner expressly agreed in his written plea
agreement to waive all claims on collateral review except for
ineffective assistance of counsel and prosecutorial
misconduct claims. [CR Doc. 26 at 5]. As such, this claim is
barred by the appellate waiver set forth in Petitioner's
Petitioner's ineffective assistance claim appears to be
untimely. Section 2255 imposes a one-year statute of
limitations period for the filing of a motion to vacate:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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 and made retroactively
applicable to ...