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Clark v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 8, 2019

PATRICIA DIANE CLARK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court following receipt of Petitioner's response to the Court's Order [Doc. 11] requiring Petitioner to explain why her 28 U.S.C. § 2255 motion to vacate [Doc. 1] is not time-barred and, if it is time-barred, why equitable tolling should apply. For the following reasons, the Court dismisses the § 2255 petition as time-barred.

         I. BACKGROUND

         Pro se Petitioner Patricia Diane Clark pled guilty to conspiracy to commit wire and mail fraud in violations of 18 U.S.C. §§ 1349, 2326(2)(A) and (B); wire fraud and aiding and abetting the same in violation of 18 U.S.C. §§ 1343, 2326(2)(A) and (B), and 2; and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). [Criminal No. 3:13-cr-163-FDW, Doc. 60 (Judgment)]. On August 11, 2015 this Court sentenced Petitioner to 130 months of imprisonment and ordered payment of restitution in the amount of $642, 032.15. Judgment was entered on August 24, 2015, and Petitioner did not appeal. [Id.]. Petitioner placed her original petition in the prison system for mailing on July 28, 2018. [Doc. 1]. On March 3, 2019, Petitioner placed an amended petition in the prison mailing system. [Doc. 10]. Petitioner's sole claim for relief relates to the ordered payment of restitution and sentencing points based on the restitution amount.[1]

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without a response from the Government and without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 by imposing a one-year statute of limitations period for the filing of a motion to vacate. Such amendment provides:

A 1-year period of 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 making a motion by such governmental action;
(3) the date on which the right asserted was initially 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).

         Here, as noted, judgment was entered in this action on August 24, 2015, and Petitioner did not appeal. [3:13-cr-163-FDW, Doc. 60]. Petitioner's conviction, therefore, became final for purposes of Section 2255(f) fourteen days after judgment was entered, on September 7, 2015. See Fed. R. App. P. 4(b). Petitioner did not file her Section 2255 motion to vacate, however, until nearly ...


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